[Sylvia Heal in the Chair]

Eric Forth: On a point of order, Madam Deputy Speaker. I beg to move, That the House sit in private.
	Question put forthwith, pursuant to Standing Order No. 163 (Motions to sit in private):—
	The House proceeded to a Division.

Madam Deputy Speaker: I ask the Serjeant at Arms to investigate the delay in the No Lobby.

The House having divided: Ayes 0, Noes 37.

Question accordingly negatived.

Points of Order

Mark Harper: On a point of order, Madam Deputy Speaker. Can you help me? Yesterday, at business questions, the Deputy Leader of the House stated that there would be no opportunity to debate the police restructuring proposals before Christmas, yet on Wednesday the Home Secretary, when challenged at a regional newspapers lunch by Ian Mean, the editor of The Citizen, said that the House would have three opportunities before the Christmas recess to debate those proposals. I have written to the Home Secretary but have not yet had a reply, and I gave his office notice that I would raise this point of order. Could you help me, Madam Deputy Speaker, in letting me know how I can progress the matter to make sure that the record is corrected?

Madam Deputy Speaker: The hon. Gentleman will recall that Mr. Speaker suggested that the matter should be pursued through the usual channels, so I advise him to do just that.

Eric Forth: Further to that point of order, Madam Deputy Speaker, and very much in that context. Are you aware of any contact between the Home Secretary and the Government Chief Whip, so that the Chief Whip can deliver what the Home Secretary has apparently promised us? It would be helpful to the House if we could be reassured that undertakings apparently given outside this place by the Home Secretary to provide debating time will be delivered as promised.

Madam Deputy Speaker: I regret to inform the right hon. Gentleman that I am unable to reassure him on that point.

Owen Paterson: Further to that point of order, Madam Deputy Speaker. Has it been brought to your attention that of the first 3,000 people who replied to the consultation undertaken by West Mercia police, 88 per cent. want the status quo on the area and strategic force—

Madam Deputy Speaker: Order. That is not a point of order for the Chair.

Orders of the Day
	 — 
	Criminal Law (Amendment) (Protection of Property) Bill

Order for Second Reading read.

Anne McIntosh: I beg to move, That the Bill be now read a Second time.
	It gives me great pleasure to introduce the Bill. In doing so, I pay tribute to my illustrious predecessors, not least my hon. Friends the Members for North Thanet (Mr. Gale) and for Newark (Patrick Mercer), who set the scene for the measure. I also pay tribute to the work of my hon. Friend the Member for North-West Norfolk (Mr. Bellingham), who has joined me today to lend his support for my attempt to take the Bill to its next stage. He has done much work for his constituent, Tony Martin, whose case was probably the one that instigated our attempts. I pay tribute to my three colleagues.
	I am delighted to tell the House that I enjoy the support of the whole Conservative parliamentary party, and there is much support for the measure in the country. It has indeed proved to be the people's choice. Seldom in one's parliamentary career does one have the opportunity to make a difference to people's lives and I feel that this is my moment—my parliamentary moment. Normally, I do not win on the lottery, either the national lottery or the lottery of life—

Chris Bryant: That is because the hon. Lady does not buy a ticket.

Anne McIntosh: I knew there must be a reason. However, I am delighted to have secured fifth place in the ballot for private Members' Bills.
	I want to explain why we need a change in the law. The law is not clear and we need a deterrent to show burglars why they will meet more force and resistance than may have been the case hitherto. Undoubtedly, fear of crime, and of burglary in particular, is increasing and the violence used by burglars is increasing, too. Only this week, on 30 November, The Birmingham Post reported that a shop assistant had been shot twice in the face during a robbery in Birmingham and that he could lose his eye. The report stated that the father of two, Imran Shah, who is only 21 years old
	"was serving in the 24-hour Hamza Food Store in Sparkbrook at 2 am . . . when two masked men swooped."
	The time has come to redress the balance.

Nigel Evans: My hon. Friend may remember that about three years ago in my store in Swansea I confronted a shoplifter who attacked me. Had I used force to retaliate and if he had fallen backwards and sustained head injuries, I might have found myself in court facing charges of using disproportionate force to protect myself. Is not the problem in such cases that when someone is confronted by a burglar the last thing that they should be thinking about is whether they will end up in court? They need to protect themselves, and the Bill will allow them to do that.

Anne McIntosh: I bow in admiration of the heroic efforts of my hon. Friend. He has illustrated the problem more graphically than most Members could do.

Chris Bryant: I am glad that the hon. Lady is bowing in admiration and praise to the hon. Member for Ribble Valley (Mr. Evans). However, I think I am correct in saying that in the example he gave the shop was open and the hon. Lady, too, referred to an incident in a shop that was open. In neither case had trespass occurred, so her Bill would have been of no use whatever.

Anne McIntosh: I am tempted to ask whether we are boxer shorts or briefs today.
	Two successive Metropolitan Police Commissioners, Sir John Stevens and Sir Ian Blair, have said that this change in the law is needed. Sir John Stevens said that
	"householders should be presumed to have acted legally, even if a burglar dies, unless there is contrary evidence".

Andrew Dismore: rose—

Chris Bryant: rose—

Anne McIntosh: I want to make some progress.

Andrew Dismore: Will the hon. Lady give way?

Madam Deputy Speaker: Order. The hon. Lady is not giving way at the moment.

Anne McIntosh: When we consider recent case law we can see that the reasonable force defence is not satisfactory. The case of Tony Martin captured public imagination. Most of us would prefer, if we were being burgled, to phone the police and receive, as we would expect, a prompt response. However, as we have just heard in points of order, we are faced with a restructuring of the police force and in areas such as North Yorkshire and Norfolk we shall undoubtedly lose our rural police forces, as officers will be asked to serve in urban areas on anti-terrorist or security duties and will have even less time to attend to burglaries. People such as Tony Martin will thus regrettably be faced with the prospect of having to take the law into their own hands.

Henry Bellingham: I congratulate my hon. Friend on bringing forward this excellent Bill. She rightly mentions the case of my constituent, Tony Martin, who was driven to desperation due to the lack of a police response. He should not have been charged with murder; I feel strongly that when burglars break into a house they should leave their rights outside, except in the most extreme circumstances. Does my hon. Friend agree that the Tony Martin case has sparked a huge national debate and that there is a large amount of public support for her measure? Why are the Government not listening to her and supporting her Bill?

Anne McIntosh: I am grateful to my hon. Friend. Perhaps we shall all get a surprise this morning and find that the Government are willing to support my reasonable proposals.
	The Tony Martin case captured public imagination. Regrettably, however, a threshold was crossed and the burglar was fleeing the building, possibly not with stolen property—that could not be proved—and Tony Martin ceased to be acting in self-defence and was an aggressor. The modest provisions in my short three-clause Bill set out precisely where grossly disproportionate force would kick in.

Peter Bone: Let me cite an example of something that happened to my family. My wife returned home one day to find burglars in the house. If she had set the dog on them, would she have been safe under the Bill? If she had done that and a burglar had been injured terribly, I am not sure whether she could have been charged under the current law.

Anne McIntosh: We would rely on the courts to decide what grossly disproportionate force would be.

Nick Palmer: Will the hon. Lady give way?

Anne McIntosh: May I make some progress?
	I wish to cite two recent cases that demonstrate how the criminal justice system is failing the victim—the home owner and the property owner. Persistent offenders can be released early and then go on to commit burglaries, which can lead to the death of innocent victims, as these cases show. Marian Bates was innocently going about her business as a jeweller in her shop in Nottingham. The persistent offender in that case was let out on licence. He was meant to be tagged and under the supervision of a security firm, but he released himself from the tag and went on, with tragic consequences, to commit a horrendous burglary during which he murdered Marian Bates. The case of John Monckton was equally tragic. It is a matter of fact that the main perpetrator in that case had been released after serving only seven years of his 12-year sentence for attempted murder.
	The people of England feel badly let down by the Government not only because the police are not in a position to attend burglaries as quickly as would be liked, especially in rural areas, but because it is perceived that burglaries are on the increase. When burglaries do occur, they are virtually risk-free because there is little chance of a burglar being detected, prosecuted or convicted.

Nick Herbert: I fully support my hon. Friend's attempt to change the law on the use of reasonable force against people who are found in others' homes. Given the inadequacy of the law and the prevalence of burglary that she describes, may I draw her attention to the case of one of my constituents? He woke one early morning to find two people in his house and chased them off. When the case went to court, those people offered the defence that they had been in the house looking for their cat. Incredibly, the case fell because of lack of evidence that they had the intent to steal. Is it not absurd that they were able to offer that defence? Should not the law be changed further so that there is a presumption that if people enter premises with no reasonable excuse, they commit a crime?

Anne McIntosh: My hon. Friend makes a valid point and echoes the sentiments expressed by the former Metropolitan Police Commissioner, Sir John Stevens.
	Against the background of an increase in violence, we need a recognition that the concept of reasonable force is simply not understood. When the Crown Prosecution Service guidelines were issued earlier this year, Sir Ian Blair said that for a person faced with an intruder in their home at 4 am, the concept of reasonable force is difficult to understand, yet the concept of grossly disproportionate force would be more obvious.
	We are not asking for the Oklahoma law and we are not saying that anything goes. However, people should not be prosecuted for force that is less than excessive or grossly disproportionate. The Government used that test when they introduced a provision in the Criminal Justice Act 2003 to allow burglars to sue home owners or property owners for damages if they had been subjected to such force. I argue strongly that the same test should apply under criminal and civil law.

Philip Hollobone: Constituents in Kettering are fully behind my hon. Friend's reasonable proposals because in Nottingham, as recent Home Office figures show, there is a rising fear of crime and a worryingly low burglary detection rate. Local people want extra protection against criminals.

Anne McIntosh: I entirely agree with my hon. Friend.
	The Crown Prosecution Service guidelines do not go far enough. They refer to people doing what they
	"honestly and instinctively believe is necessary in the heat of the moment",
	but that could cover a multitude of things, some of which could well lead to the death of an intruder. However, under the heading "Will you believe the intruder rather than me?", the guidelines say:
	"We hope that everyone understands that the police have a duty to investigate incidents involving a death or injury."
	It is still the case that an innocent victim will be subject to a police investigation and thus public attention.

Tobias Ellwood: Does my hon. Friend agree that burglars are well aware of their rights before they commit a burglary? If the Bill is passed, it will send a strong message to all burglars. Does she have any evidence that some people might not have committed burglaries if the terms of the Bill had been in place?

Anne McIntosh: I hope that we can examine that matter in Committee. My hon. Friend is right that most burglaries that were examined in the context of the Bill were not opportunistic, but well thought out and designed for a specific purpose.
	Let me move on to the definitions in the Bill. I paid tribute earlier to my hon. Friends the Members for North Thanet and for Newark. My Bill is different from their Bills, and especially the Bill that was introduced earlier this year by my hon. Friend the Member for Newark, because it would extend to all properties, both commercial properties and homes. It is interesting to note that the Bill enjoys the considerable support of members of the Federation of Small Businesses and members of the National Neighbourhood Watch Association. I was staggered to discover that Federation of Small Businesses statistics show that 58 per cent. of small firms are the victims of crime each year. I wanted to take account of excellent points made in the Standing Committee that considered the Bill of my hon. Friend the Member for Newark. It would be wrong to limit the Bill's provisions purely and simply to homes, so I want to extend it to all properties, including commercial properties, such as shops and retail premises.
	As my hon. Friend the Member for Newark recognised, we want a threshold for when prosecutions should be brought. I thus argue that no prosecution should be brought against a person without the permission of the Attorney-General. In preparation for the Committee stage of the Bill introduced by my hon. Friend the Member for Newark, the flawed trawl of the Crown Prosecution Service found that there had been 26 cases in a 15-month period, of which 11 had been brought to prosecution. The measure in my Bill would dramatically limit future prosecutions.
	Clause 1 would amend the Criminal Law Act 1967. Proposed new section 3(1C) says:
	"'building or part of a building' shall have the same meaning as in section 9 of the Theft Act 1968".
	The Bill thus covers all buildings, homes, commercial vehicles and vessels. It is worth considering the provisions of the Theft Act 1968 because it makes the good point that the offence of burglary is a serious crime that involves not only a threat to property, but a threat to the privacy of one's own home. That factor differentiates the offence from simple theft. Over time, the offence has been understood to cover a dwelling place and to encompass any building. Under the Theft Act, someone is guilty of burglary if
	"he enters any building or part of a building as a trespasser and with intent to commit any offence".
	They are also guilty if, having entered the building or part of it, they steal or attempt to steal anything in the building or inflict grievous bodily harm on anyone in the building. The Act includes in those offences the offences of
	"stealing . . . of inflicting . . . grievous bodily harm or raping any woman . . . and of doing unlawful damage to the building or anything therein."
	References to "a building" in the Act also apply to vehicles and vessels.

Dominic Grieve: I am grateful to my hon. Friend for defining the nature of the offence. It was suggested earlier that if someone entered premises such as a shop and committed an offence, those provisions would not apply. Is she aware that someone who enters and exceeds the term of their licence for entering premises becomes a trespasser ab initio and can be charged with burglary?

Anne McIntosh: The whole House has benefited from my hon. Friend's astute clarification which, I hope, will lead to even greater support for the Bill. I asked the Home Office for the level of burglary detection in each of the past eight years. Incredibly, it has fallen dramatically. When the Conservatives left government in 1997, 23 per cent. of burglaries were detected by the police in England and Wales. As of 2001–02, that rate had reduced to 12 per cent., and the detection rates for offences of burglary recorded by the police in England and Wales was only 13 per cent. in 2004. Right hon. and hon. Members will know that many people who report burglaries, particularly of vehicles, are simply given a police number. Those burglaries are not investigated or detected, so the offenders are never brought to book. Even more worryingly, only 3.6 per cent. of defendants were convicted of burglary in the courts in 2004–05. In the same year, only 1.6 per cent. of defendants were sentenced to immediate custody or given a custodial sentence for burglary.
	What message are we as legislators giving victims and, indeed, potential burglars other than suggesting that burglary is completely risk-free? To receive a criminal sentence and be designated a criminal someone must be accused, and their crime must be detected, recorded and prosecuted. The figures show that that is simply not happening. In clause 2, I seek to extend the provisions of the Bill to Northern Ireland, and I pay tribute to my hon. Friend the Member for Newark, because when his Bill was in Committee he said that such measures should be relevant to Northern Ireland as well as to England and Wales. I would like the provisions of my Bill to extend to Scotland, as I am qualified as a Scottish advocate, albeit a non-practising one. I hope to pursue that proposal if I am fortunate enough to see my Bill proceed to Committee. Under proposed new subsection (1A), a property owner is not guilty of an offence unless they use "grossly disproportionate" force and unless the excessive nature of that force is apparent to them.

Owen Paterson: Can my hon. Friend confirm that the phrase "grossly disproportionate" originated in the Government's own amendment to civil law?

Anne McIntosh: My hon. Friend has been listening closely, as the Criminal Justice Act 2003 sets out the test for an offence to be grossly disproportionate. The Government had to revisit the issue in the light of the claim by Brendan Fearon against Tony Martin in the constituency of my hon. Friend the Member for North-West Norfolk. Brendan Fearon was granted legal aid, reportedly to claim compensation of £15,000 for the injuries that he received. I am delighted that in September 2003 the case was settled out of court when Brendan Fearon dropped his claim and Tony Martin therefore dropped his counter-claim. Such cases make a mockery of the law. I am arguing, with the support of my hon. Friends, that we need a consistent test. Burglars should not be able to sue us for damages that we may inflict on them when they intrude and trespass on our property and commit a criminal act so, under the Bill, there is a higher test of grossly proportionate force for the householder.

Henry Bellingham: My hon. Friend has alighted on a very important point indeed. When Brendan Fearon sued Tony Martin for damages for the injuries that he sustained, that provoked outrage. Does my hon. Friend agree that any burglar who breaks into a property and commits a serious criminal offence should not be able to profit in a civil court?

Rob Marris: Brendan Fearon has not profited.

Anne McIntosh: Brendan Fearon would have profited if his civil action was successful. I am delighted that my hon. Friend the Member for North-West Norfolk has clarified the point for us.
	The arguments for the Bill are forceful. Burglary is virtually risk-free, and detection rates are at a 25-year low. Fewer than one in seven burglaries are cleared up by the police. Only three in 100 burglaries result in conviction. Public fear of crime in general and burglary in particular has increased, yet police in rural areas are severely stretched. My right hon. Friend the Member for Haltemprice and Howden (David Davis), the shadow Home Secretary, said:
	"The term 'grossly disproportionate' was actually introduced by the present government in 2003 when it amended the civil law. I believe that it would be beneficial to amend the criminal law act in the same way, restoring the balance to the victim rather than the criminal. At a time when just three out of every one hundred burglaries results in a conviction, people need to be able to feel that they can protect their lives and property."

Nick Palmer: rose—

Anne McIntosh: In conclusion, I am grateful for the wide support that the Bill has received.

Nick Palmer: On a point of order, Madam Deputy Speaker. Is it in order for the hon. Lady to strangle debate by giving way only to Conservative Members?

Madam Deputy Speaker: It is entirely the decision of the Member making the speech as to whether they choose to give way or not.

Anne McIntosh: I am mindful of the wide interest in the Bill, Madam Deputy Speaker, and I want to allow as many colleagues as possible to speak. I have been generous in giving way to Government Members.
	I thank everyone who supports the Bill in every part of England, Wales and Northern Ireland. I thank the Federation of Small Businesses, the Security Institute, the National Neighbourhood Watch Association and the former burglar Bob Turney, who has lent his not insignificant expertise. I humbly submit that the Bill is very much needed. It would extend to both residential and commercial property owners the right to defend their lives, property and belongings without fear of prosecution. It would allow people to take action only where that was deemed not to be grossly disproportionate to the threat that they faced and, in such circumstances, they would not face criminal charges. It would bring criminal and civil law into line, restoring the balance in favour of the victim rather than the criminal, and it would increase protection for people throughout England, Wales and Northern Ireland, who expect the House to vote in favour of its provisions.

Nick Palmer: Initially, I shall ask some of the questions that the hon. Member for Vale of York (Miss McIntosh) did not allow me to put during her own presentation. The first is that the crucial distinction made by her Bill by comparison with the current state of affairs is to replace the test of reasonableness with the test of gross disproportionality. She was asked by the hon. Member for Wellingborough (Mr. Bone), who left the Chamber immediately afterwards, what would happen if his wife set the dog on an intruder. The hon. Lady responded—with respect to her—evasively, saying that that was a matter for the courts to decide. Is that not a classic example of the state of uncertainty, about which she and her hon. Friends complain, in the current situation?
	At present, if the hon. Lady were to break into my house and I had to decide how far I could deter her, I would have to consider what would be deemed reasonable. Under her Bill, I would have to consider what was grossly disproportionate. It is possible to imagine situations where behaviour is unreasonable but not grossly disproportionate, or cases where it is grossly disproportionate but not unreasonable.
	Let us take, for example, the case of the British tourist who, in one of the southern states of America, one dark night got lost. He went up the path to a remote house and wanted to ask the way. As he approached, the nervous householder, who I believe had been burgled several times, thought he was another intruder and shot the tourist dead. We could all agree that that was grossly disproportionate—[Hon. Members: "Some of us would."] Unlike the hon. Lady, I shall be glad to give way if she wishes to intervene, but I hope she would agree that that was grossly disproportionate.
	Could we also say that that was unreasonable? Looking at the case, at least through British eyes, we would say, yes, it was unreasonable. But suppose the householder had not shot the tourist dead, but merely wounded him. An American court, and, I submit, a British court might in that case have said, "Well, this is grossly disproportionate—using a firearm to attack somebody who has not yet done anything worse than walk up the drive—but is it unreasonable?" One could argue that with a history of burglaries, it is understandable if the householder feels nervous.
	Here we have a case where the householder would be prosecuted under the hon. Lady's Bill, but not under the current law. Her Bill would replace one uncertainty with another uncertainty. That is being done not to resolve the uncertainty—if that was her intention she would merely adopt the formulation that the householder can do anything on his own premises—but to seek partisan advantage, by pretending to bring forward a different form of words which in practice would do nothing to reassure the householder that they would be able to operate. The householder would have exactly the same dilemma: to judge what a court might think of his or her behaviour—

Roger Gale: The hon. Gentleman has just made a disgraceful statement and he knows it. For him to suggest that the Bill is being moved for partisan advantage rather than in response to public concern is about as sensible as Conservative Members trying to pretend that every Labour Member who opposes it is a burglar's friend.

Nick Palmer: I am afraid I cannot share the hon. Gentleman's synthetic indignation. I note that not very many Opposition Members have bothered to turn up to take part in the debate. There are seven. Each of the Conservative Members present have pursued the issue in what seems to me a partisan spirit which is alien to what ordinary people in Britain want. What ordinary people want is a degree of certainty.

Owen Paterson: Would the hon. Gentleman reflect that the hon. Member for Ealing, North (Stephen Pound) had a poll on the "Today" programme last Christmas and a measure like the Bill got overwhelming public support? His reply, which perhaps represents the view of the hon. Member for Broxtowe (Dr. Palmer) as well, was, "The people have spoken, the ********". I am afraid the hon. Member for Ealing, North then used an unparliamentary word on the public airwaves.

Nick Palmer: It is a common phrase that was used. It was used by a Conservative colleague of the hon. Gentleman on the website yesterday when he heard about the Labour gain in the constituency of Thurrock. Such partisan remarks are not unknown.
	The fundamental question that we all have to answer is whether we have a degree of trust in the British jury system or not. If we examine a typical case, as evinced by several hon. Members who have spoken so far, we have great difficulty in imagining a British jury in the case described—the hon. Member for Ribble Valley (Mr. Evans), who attempted to stop a shoplifter, or the hon. Member for Wellingborough, whose wife released a dog against an intruder—saying, "Yes, we are going to convict this person."

Robert Flello: Will my hon. Friend give way?

Nick Palmer: With reluctance, but yes.

Robert Flello: My hon. Friend is very kind. He mentioned the apprehension of, say, a shoplifter—someone who has gone into a premises and stolen something. The thief may have left the premises and may be on the street outside. He would no longer be covered by the Bill. Would the security guard giving chase have to stop and think, "I have moved from grossly disproportionate to reasonable force. Hang on a moment. Let me think back to the case law before I carry on apprehending this person."?

Nick Palmer: I apologise to my hon. Friend for frivolously hesitating. He makes a good point.
	If we are honest about it, in all these situations people are operating at the edge of law and are not sure where they stand. That is the problem which, to be fair, the hon. Lady's Bill purports to address, which the Bill introduced by the hon. Member for Newark (Patrick Mercer) attempted to address, and which the Home Office guidance on the existing law attempted to address. It is a genuine difficulty. I share with the hon. Lady, though not, I think, with the hon. Member for North Thanet (Mr. Gale), the view that Tony Martin moved beyond the stage of proportionate response, even to the point of grossly disproportionate response.

Chris Bryant: My hon. Friend may have detected in the presentation by the hon. Member for Vale of York (Miss McIntosh) of her Bill today that there has been quite a significant shift from the way the hon. Member for Newark (Patrick Mercer) presented his Bill a year ago, when he made it clear that he did not think that Tony Martin was acting properly and lawfully, and that his Bill, as then drafted, would have made no difference to his case. The hon. Lady seems to be suggesting that he would be let off.

Nick Palmer: I am grateful to my hon. Friend. I am not aware of the details of the position of the hon. Member for Newark. If he wishes to intervene, he is welcome to do so.

Patrick Mercer: When I presented a similar Bill, I made no bones about my view that Mr. Tony Martin would be guilty of grossly disproportionate behaviour. My ears were fully open and, I trust, clean when I heard my hon. Friend the Member for Vale of York (Miss McIntosh) make precisely the same point.

Nick Palmer: Fine. Whatever positions may or may not have been taken in the past, we, with the exception of the hon. Member for North-West Norfolk (Mr. Bellingham) who represents Tony Martin and who is in a particularly difficult position, are approaching unanimity on that point. Unless someone wants to contradict me, the rest of us agree that Tony Martin exercised grossly disproportionate force.

Robert Flello: Was it not also the case that the court found that Tony Martin had not used reasonable force and was therefore guilty under the existing legislation? In that case, what is the point of introducing the Bill?

Nick Palmer: That is right. The Tony Martin case is useful because it illustrates one element of the grey area. We all agree that Tony Martin used excessive, grossly disproportionate force, and we disagree with a number of members of the general public, which is perhaps because the general public have not studied all the aspects of the case. For example, some members of the general public are not aware that the person who was shot was fleeing at the time, and they are not aware, as I understand it, that Mr. Martin left that person to die before calling the emergency services. Those elements clearly influenced the jury to convict Tony Martin. We must avoid going too far up the side alley of the Martin case, because as my hon. Friends have said, it was adequately covered by current legislation.
	Conservative Members need to be careful, to use an outmoded metaphor, that they are not running with the fox and hunting with the hounds. The hon. Member for Vale of York and other Conservative Members cite the Tony Martin case as an example of strong public feeling, but if we agree that those elements of the public who sympathise with Tony Martin are mistaken, then it is not evidence to support her Bill or any other change in the law.

Ian Austin: Is my hon. Friend aware that Tony Martin's defending barrister, Anthony Scrivener, described the current arrangements as
	"simple and weighted overwhelmingly in favour of the householder"?

Nick Palmer: I did not know that, but that is my understanding of the current law. However, we must be open about the point that some people are unsure whether that is the case. That is why it was particularly valuable when the Home Office issued a clarification last year—it is reasonable to say that the Bill introduced by the hon. Member for Newark prompted the Home Office to issue that clarification. Many people who, until that point, had felt that the law needed to be changed, looked at the clarification and said, "In that case, the current law is probably about as good as it gets."

Sadiq Khan: Does my hon. Friend agree that one of the reasons why misunderstandings have occurred and further clarification is required is the outrageous scaremongering by some Conservative Members on the past three occasions on which this Bill has been introduced?

Nick Palmer: Yes; that returns me to my dialogue with the hon. Member for North Thanet. The issue has been exploited for partisan purposes, and it has also been whipped up by elements in the press. If one reads the Daily Express every day, and one reads only the Daily Express, it is very difficult to retain the will to live. [Laughter.] Every day, the front page contains a new catastrophe, a new sell-out, a new betrayal and a new threat to the existence of the British human race. Among the terrible catastrophes that the Daily Express describes is an alleged failure of the law to give due account to the position of the householder.

Owen Paterson: The hon. Gentleman has underestimated the absolute exasperation in the countryside at the thin level of policing and the impact of regular burglaries. In the Martin case, people concentrate on the grossly disproportionate use of force, but Tony Martin had been driven to total distraction and almost irrational behaviour because he had been burgled 10 times. The forces of law and order did not support him, because they were not there. Does the hon. Gentleman not see that the Bill would have a deterrent effect? If the criminal law were brought into line with the civil law, there would hopefully be less burglaries and less Tony Martins who have been driven to total distraction and irrational behaviour.

Nick Palmer: Before I respond to the hon. Gentleman, will he clarify whether he feels that Tony Martin should not have been convicted?

Owen Paterson: The use of force was grossly disproportionate. I am trying to get away from the physical action and into the state of mind of a man living in an isolated farmhouse in a rural area where the forces of law and order were unable to help him. Tony Martin had been burgled 10 times, and I repeat that he was driven to distraction and irrational behaviour. The hon. Gentleman must not underestimate the real fear on that front in rural areas. If the House were sensible enough to pass the Bill, which I wholeheartedly support, I hope that it would lead to less burglaries and people thinking twice before setting out to burgle a lonely farm such as Mr. Martin's.

Nick Palmer: I will not correct the hon. Gentleman's grammar. [Hon. Members: "Go on."] We all support the new literacy drive.
	We all accept that the more isolated the property, the more people worry that they will not get an immediate response from the police. If we are honest, that worry will always exist, regardless of the level of policing. We will never have a policeman within immediate reach of every isolated farmhouse.

Robert Flello: Does my hon. Friend agree that the way to make sure that the good people in rural areas are protected in the same way as the good people in more built-up areas is to ensure that we have proper and full policing in this country, which we have achieved thanks to the investment in policing under this Government? And does he agree that the greatest harm that we could do to people in rural communities would be to introduce the £35 billion of cuts suggested by the Conservative party?

Madam Deputy Speaker: Order. I hope that hon. Members will concentrate their remarks on the Bill.

Nick Palmer: I shall follow your instruction, Madam Deputy Speaker, and draw a veil over the matter.
	Because I was asked directly about policing, it is probably in order to say that I agree that part of the solution that people want is a reasonable level of policing across the countryside. However, people are not unrealistic about that matter, and they do not expect a policemen to be within a couple of minutes of every isolated farmhouse, which is why we must accept that increased policing is not the whole solution. If we are treating the Bill seriously, it is probably not a complete answer to say that we should not worry because we have got more police, and I think that my hon. Friend the Member for Stoke-on-Trent, South (Mr. Flello) probably agrees with that point.

Janet Anderson: The hon. Member for North Shropshire (Mr. Paterson) has mentioned the alleged deterrent effect of the Bill. Did my hon. Friend notice that when the hon. Member for Vale of York (Miss McIntosh) introduced her Bill, she prayed in aid two tragic cases—that of Marian Bates, who was shot by a burglar, and that of the Monckton family? Does my hon. Friend agree that the hon. Member for Vale of York provided no evidence that her Bill would have prevented either of those tragedies?

Nick Palmer: Yes, I do agree. That is one of the fundamental difficulties about the Bill. Frankly, it is an example of gesture politics. If the Conservative party were in government, we would be sitting on the Opposition Benches saying that it is an example of the Government trying to be seen to do something. However, there is no evidence that it would make any concrete difference. I do not believe that a British jury would make this very fine distinction between unreasonable behaviour and grossly disproportionate behaviour. In a case such as that of Tony Martin, the jury would convict in either event. The hon. Member for Ribble Valley described his experience with a shoplifter. In a case such as that, the jury would acquit in either event. Indeed, I do not think that the Crown Prosecution Service would attempt to prosecute in such cases. As I understand it, it was not only the hon. Gentleman's immunity that protected him from prosecution.

Owen Paterson: It is most important that the hon. Gentleman address the question of deterrence. We will never have enough police to cover remote farmhouses in rural areas, so it is in the interests of the police and of the general public that before burglars set out they have a really hard think. Is it worth it? Is the risk higher? Surely if the Bill deters burglars, that is in all our interests, and the hon. Gentleman must agree that it will have a deterrent effect.
	In response to the hon. Member for Rossendale and Darwen (Janet Anderson), my hon. Friend the Member for Vale of York mentioned those violent cases merely as evidence that violence is increasing. My point is that there is a much broader public good to be gained from the Bill if burglars think twice and stay at home watching the telly, or preferably reading a book and doing something constructive.

Nick Palmer: There are two tests of the Bill: first, whether it would have the effect that the hon. Gentleman hopes, and secondly, whether the incidence of mistaken injury done to innocent people would increase. It is reasonable for the House to consider both those issues. So far I have concentrated on whether it would have an effect.

Robert Flello: On deterrence, does my hon. Friend agree that there is a possibility of the said burglar sitting at home and thinking, "Hang on a second. If I go burgling, I may get shot or stabbed—I had better arm myself."

Nick Palmer: That is right. There is a real risk of an arms race. That takes us back to the argument, which is outside the scope of today's proceedings, about whether we should arm the police. It is traditionally argued that if we arm the police we are likely make it more probable that criminals will also be armed.

Owen Paterson: That is irrelevant, because all the statistics show that violent crime is increasing. We all know that, regrettably, the vast majority of guns are held and used illegally.

Nick Palmer: Despite the citing of several examples of violence, we are primarily discussing not violent crime but burglary. Under every form of measurement, the incidence of burglary has been falling since 1995. To make a non-partisan point, it started to fall under the last Conservative Government, because the sky-high rates of unemployment that had been reached were just beginning to come down, and it has been falling ever since. It is important that we do not give the public the false impression that they are more at risk of burglary than they were before, because everyone who has considered the issue seriously knows that that is not the case.

Sadiq Khan: Is not the intervention by the hon. Member for North Shropshire (Mr. Paterson) a classic example of leading people astray in a partisan way? Aggravated burglary—that is, where the burglar has a weapon—accounts for less than 1 per cent. of burglaries. Furthermore, the chance of someone being burgled is at its lowest point for 20 years.

Nick Palmer: Yes, that is right. It is not a question of reported crime. It is generally accepted that burglary is usually reported, if only to get a crime number for insurance purposes. We are comparing like with like—police statistics with police statistics and the recorded crime survey with the equivalent survey. If we are having a serious discussion, we should accept that burglary is becoming less common. That is not only because of Government action, although that has a great deal to do with it, but because people are getting better at ordering their security—alarm systems and so on. It is also because some criminal gangs are diversifying into activities such as smuggling where the pay-off is higher and the risk is lower.

Sadiq Khan: rose—

Nick Palmer: I shall give way to my hon. Friend once more, and then I should like to make some progress.

Sadiq Khan: It is asserted that the figures are inaccurate because fewer crimes are reported. What about the British crime survey, which asks people about their actual experiences and so gives a more accurate picture of crime levels and trends across the country? Even according to that survey, the number of burglaries is the lowest for 20 years and aggravated burglaries represent less than 1 per cent. of all burglaries.

Nick Palmer: I agree.
	In order to make progress, perhaps hon. Members will accept for the sake of argument that the issue is not that the number of burglaries is going up—it has been going down for some time—but that people are still concerned about what they should do and what their legal position would be if a burglary were to occur.
	I want to move on to the risk of injury to innocent persons. I gave the extreme example of the tourist in America who was shot dead. There are obviously many other possibilities that are much milder. In our densely populated cities, there is every chance that trespass, in the formal legal sense of the term, will happen many times a day in every city. We all have constituents who complain that youths whom they do not know have wandered into their garden. They are worried by it because they do not know what those youths, who have perhaps kicked a football over the wall or are just being insolent, have in mind. They feel uncertain and uneasy—and who can blame them? It is entirely reasonably that they should. The problem is that under the hon. Lady's Bill any response that was not seen as grossly disproportionate would become legal.
	Let us consider what that means. For example, if a 14-year-old were to wander into the garden of a householder who had a history of being aggravated by local kids, and who then assaulted the child and bundled him off the premises, causing him bruising and minor injuries, would that be seen as grossly disproportionate? I am not sure that it would. Under the present law, it would certainly be seen as unreasonable, because it is unreasonable for someone to use force against a person who has merely strayed on to their property, unless they have first asked them to leave and taken all reasonable steps to get them to do so. Would it be grossly disproportionate? As a householder, I would have great difficulty in deciding whether it would be grossly disproportionate.

Lynne Featherstone: Does the hon. Gentleman agree not only that it would be difficult to decide if a response was grossly disproportionate, but that there is an implication that it would be okay to be disproportionate?

Nick Palmer: The hon. Lady makes a good point. If we changed the law in this way, we should be saying that it was okay to be disproportionate or unreasonable, so long as we were not grossly disproportionate. I would be very reluctant to anchor that principle in the law of Great Britain. The principle of reasonableness, which we apply to enormous swathes of the law, is very valuable. It has stood the test of time, and juries have traditionally interpreted it in a way that most of us would accept. If we were to move from the concept of what a reasonable person would do, and to adopt a concept of what a not-grossly-disproportionate person would do, I submit that we should be moving on to dangerous territory. We should be moving into the area of frontier law.
	I hope that I am not misrepresenting the hon. Member for North Shropshire—he will correct me if I am—but I understood him to say that, because people in remote farmhouses, for example, cannot realistically expect the police to dash round at two minutes' notice, they need to take other measures to deter burglars and make them think twice before intruding on their property. I assume that such measures would include the possession of some kind of weapon with which the householder could defend themselves in the event of what they saw as a dangerous intruder entering their property. That would say to people across the countryside, "We encourage you to equip yourselves with weaponry, and, if you see someone who you believe to be an intruder, you can use those weapons on them so long as you are confident that a jury will not find that you have behaved in a grossly disproportionate manner." That would be dangerous in the extreme. I do not believe that the general public want it to be the norm in the British countryside for people to arm themselves in order to assault potential intruders. That is not where we want to go; it would lead to more trouble than we have at the moment.

Patrick Mercer: What the hon. Gentleman is saying makes a great deal of sense. There is nothing in the Bills introduced by my hon. Friend the Member for North Thanet (Mr. Gale), my hon. Friend the Member for Vale of York or myself that aims to aggravate the situations that the hon. Gentleman has mentioned. That is precisely why we have included new subsection (1B).

Nick Palmer: I am grateful to the hon. Gentleman for his intervention, which was, as always, measured and restrained. None the less, as the hon. Member for Vale of York said in her introduction, the Bill would be significant in the sense that it would send a message to householders. There are two possible messages that we could send. One is that nothing much has changed; we might have changed the wording a bit, but basically people are still in the same legal grey area as before, in that they will not know whether they are going to be prosecuted or not. I suggest that, if we send that message, people will be quite fed up with us. They will say that we just mess about and do not change anything.
	The other message that we could send is that people can take additional measures to arm or protect themselves against intruders. That is what people would understand by the Bill if it were passed. All the clarification in the world would not make a difference to that conclusion, and the result would leave the peace and quiet of the British countryside in a much worse position than it is today. There is a tradition in the British countryside, as I am sure the hon. Member for North Shropshire will confirm, that if someone gets lost or needs help, or if the weather turns unpleasant, they can go to a stranger's house and ask for assistance. People might be a little wary if they were to do that in central Nottingham—"Who is this stranger knocking on my door? What does he want?"—but the tradition still exists in the countryside. It would be a great pity if we were to tilt the balance away from that because of the increasingly rare cases of violent burglary. We must not put that balance at risk by starting what my hon. Friend the Member for Stoke-on-Trent, South referred to as a sort of arms race. We should not encourage householders to buy knives, to set traps, or to build barbed wire or electric fences in order to fight off intruders by themselves.
	We all appreciate that people who choose to live in a remote area might be worried about the time that it can take for the police to respond when they are called. However, the measure proposed by the hon. Member for Vale of York would make no difference to the probability of conviction. It would instead risk sending a message that would be counterproductive to law in order in Britain. That is the fundamental risk that the Bill creates.
	If the Bill had been presented in a non-partisan way, I would merely have thought it a mistake. As it stands, however, it seems to me to be a mistake that has been made for political reasons. This subject deserves more serious treatment than it has so far received.

Patrick Mercer: Some extremely interesting points have been raised so far. Before I start to make my points, as best I can, I would like to pay tribute to my hon. Friend the Member for North Thanet (Mr. Gale), who introduced the issue in the first place. I also congratulate my hon. Friend the Member for Vale of York (Miss McIntosh), who has added tremendously to the Bill that I tried, unsuccessfully, to introduce at the beginning of this year.
	The Bill before us today contains a number of provisions that are considerably better than those in my Bill, particularly proposed new subsection (1C), which clears up the misapprehensions—which I was partly responsible for broadcasting—about the difference between these provisions and those in the Theft Act 1968. I also want to pay tribute to the hon. Member for North Down (Lady Hermon)—who, sadly, is unable to be present today—for the points that she made in Committee on the parts of my Bill that pertained to Northern Ireland.
	I think that I am unique in that I am the only person in the Chamber today who knows and has spoken on many occasions to Mr. Brendon Fearon. Let me remind the court—I mean the House—of the Tony Martin case. When it came to light, it enlivened the whole of my constituency. The two boys who went to try to burgle Tony Martin's farm both came from the crime-ridden estate of Hawtonville, in the north of my constituency. One of them, Brendon Fearon, survives today, despite having sustained gunshot wounds to his left buttock. The other, Fred Barras is, in my view quite wrongly, in his grave.
	There is no doubt in my mind that Fred Barras was a criminal and that he should have been deterred. Nor is there any doubt in my mind that his victim could have used a number of methods to stop him burgling his farm. There is absolutely no doubt in my mind, however, that both young men were assaulted in a grossly disproportionate way, and one of them was murdered but should today be alive and—if I can be forgiven the phrase—kicking.
	The fact remains that the individual who convinced me of the rectitude of what I tried to do unsuccessfully earlier this year was Mr. Brendon Fearon. He has a long criminal record and he continues to offend. When it became clear to that excellent organ, the Newark Advertiser, that I was going to introduce my Bill, it went to interview Brendon Fearon. It knew quite well that he was certain to be found at the magistrates court, which is exactly where it found him. It put the case to him by saying, "If our Member of Parliament manages to introduce this Bill, what effect would it have on you as a persistent offender?" A number of Labour Members, from a sedentary position, have referred to the fact that if Conservative Members thought that criminals would be deterred, we were living in cloud cuckoo land. Mr. Brendon Fearon said that if the Bill were introduced, it would deter him, and would stop him committing the crimes of which he has been convicted on many occasions.
	When I introduced the Bill, it seemed that I had the support of the Prime Minister. I will not bore the House by going through the Prime Minister's precise words, but he changed his tune after a little while. It also seemed that I had—hardly, on mature reflection—the support of the brand spanking new Metropolitan Police Commissioner, Sir Ian Blair. He also changed his tune after a matter of hours.

Janet Anderson: Is the hon. Gentleman aware that Sir Ian subsequently retracted the comments that he made on the "Today programme" and gave his support to the Association of Chief Police Officers' position?

Patrick Mercer: I am grateful to the hon. Lady. I do not know whether she heard Sir Ian Blair's words on the radio in January this year, but, unfortunately for him, it was his first day in post, and I have no doubt that he had not had time properly to be briefed on the Government's line. The fact remained, however, that in the early hours of that day, he said, although I paraphrase him, that grossly disproportionate was a reasonable test. Later in the day, he changed that, and the hon. Lady will remember that the Prime Minister had to express his confidence in him on his very first day in post.

Nick Palmer: When the hon. Gentleman says that it was Sir Ian Blair's first day in post and he did not know the Government's line, is he suggesting that Sir Ian is a sheep who automatically follows the Government's line?

Patrick Mercer: I would not dream of suggesting anything about such an eminent police officer. He seemed to change his tune very quickly, however, between appearing on the "Today" programme, on which his comments were unequivocal, and the ACPO briefing, which followed a few hours afterwards and which I am sure the hon. Gentleman will remember.
	With the support of a convicted criminal, a persistent offender, the outgoing Metropolitan Police Commissioner, Sir John Stevens, the incoming Metropolitan Police Commissioner, the apparent support of the Prime Minister and the overwhelming support of the public, I thought I had a compelling case when the Bill came before Parliament earlier this year. Sadly, that proved to be incorrect. Much to my regret, the Bill was hijacked by politicians and turned into a party political issue, and I genuinely regret its proximity to the general election. We were robbed of a useful measure that would deter burglars, help and assist policemen, support householders and, most importantly, shift the balance from householders feeling that the law was against them to burglars and other intruders knowing that the law was against them. At the same time, we might achieve a lessening of the possibility of bloody affray either in shops or houses. I hoped that the Bill's deterrent effect would stop confrontation, lessen the fear of householders and increase the fear of burglars. Clearly, I failed.
	Proposed new subsection (IB) states:
	"No prosecution shall be brought against a person subject to subsection (1A) without the leave of the Attorney General."
	A few moments ago, the hon. Member for Broxtowe (Dr. Palmer) skirted over my point when I intervened on him—whether that was intentional, or whether he had not had time to look at the Bill, I am not sure. Many of his good points, however, are addressed by that provision. The point is that the arbiter of whether people are taken to court is not some policeman or the Crown Prosecution Service but the Attorney-General, who must decide what is grossly disproportionate as opposed to reasonable or unreasonable.

Nick Palmer: I am glad that the hon. Gentleman appreciates the importance of including the Attorney-General in the decision-making process, and I look forward to his supporting our Racial and Religious Hatred Bill on similar grounds. I also agree with his earlier point that it is a great pity that this issue has become so politicised. Will he tell us whether his party urged him to introduce his Bill just before the general election?

Madam Deputy Speaker: Order. I hope that we will spend more time on the current Bill than on the previous one.

Patrick Mercer: I take your point, Madam Deputy Speaker, and if I have strayed from the letter of the Bill before us, I am in error, and I apologise.
	The hon. Member for Broxtowe, of course, comes from crime-locked Nottinghamshire, as I do, and he makes some very good points. I hope that he knows me well enough now, however, to understand that I will always try to put the good of my constituents before any petty party political advantage. I hope that I have made a reasonably compelling case that this subject is close to my heart. Perhaps the subject did not originate in Newark, but it has a strong bearing on my constituents, not because it is a mainly rural constituency such as the Vale of York, but because it has a combination, as the hon. Member for Broxtowe knows, of inner-city and rural problems, which are exacerbated by the lowness of numbers of the excellent Nottinghamshire constabulary.

Fiona Mactaggart: There are more now than under the Conservative Government.

Patrick Mercer: In response to the Minister's comment from a sedentary position, no, there are not.
	The importance of the Attorney-General being the arbiter is highlighted by the case of Charlie Mayall.

Sadiq Khan: The hon. Gentleman's justification in relation to lack of certainty is that the Attorney-General would be the arbiter of what is grossly disproportionate. If so—and that is the logic, as I understand it—why did he and his colleagues find it so offensive for the Attorney-General to be the arbiter of incitement to religious hatred? In that case, he argued that people would not know how far they could go. Similarly, in this case, a householder would not know how far he or she could go.

Patrick Mercer: The hon. Gentleman tempts me, but I have already been cautioned about straying off the point of this Bill. If he wants to speak to me afterwards, I will be delighted to take that up.
	Under the Criminal Justice Act 2003, the Government introduced the phraseology of gross disproportionality—that is Government wording in civil law. All that my hon. Friend the Member for Vale of York is trying to do now is to bring criminal law in line with that designed by the Government under civil law.
	The Minister has asked who Charlie Mayall is. Charlie Mayall lives in a crime-ridden area of Newark called York drive. He resisted an armed break-in by a number of hoodlums some months ago. When he struck one of them, who then made off, the police arrested him immediately. They believed at the time that they could secure a prosecution against him because he had acted unreasonably.
	As a result, Mr. Mayall appeared in court on three occasions, was dragged to and from Newark police station on many different occasions, lost his job, was subjected to all sorts of personal pressures and lost earnings. Only after seven months of that process was he told by the police that the case had collapsed through lack of evidence and that there was no case to answer. How often, in such cases, do the jury and judge eventually say, "This is nonsense, there is no case to answer and you have acted perfectly reasonably"? The fact remains that the individuals involved are treated as criminals. They are put under the most enormous pressure yet are ultimately not found guilty.

Robert Flello: Does the hon. Gentleman believe that, if this Bill were enacted, police should arrest someone in similar circumstances, or should they not investigate the case, automatically thinking, "It is obviously not grossly disproportionate"?

Patrick Mercer: I have no doubt that the police will make an arrest on those occasions and that they will feel much clearer in their own minds that the arbiter will quickly decide whether the individual should be taken to court. The best scenario is that, as a result of this measure, the likes of Charlie Mayall will not be put through months of pressure and indignity.

Robert Flello: rose—

Patrick Mercer: I will not give way again if the hon. Gentleman does not mind.
	The Bill makes a huge amount of sense. I believe that it has the support of criminals, police officers and, most important, the public. I hope that Labour Members will not view this as a party political issue but will try to view it as something that we are going to do for the good of all our constituents. I commend the actions of my hon. Friend the Member for Vale of York and the articulate and extremely convincing way in which she presented the Bill today, and I commend those Labour Members who speak from the heart, and who feel the rights and wrongs of this case as passionately as I do. I hope today that we can agree in the House that the Bill should become legislation and that, if it does so, it will be for the good of all concerned.

Andrew Dismore: I congratulate the hon. Member for Vale of York (Miss McIntosh) on coming so high in the ballot and on introducing the Bill, although I regret to say that I shall not support it today. May I also express my commiserations to my hon. Friend the Member for Ealing, North (Stephen Pound), who unfortunately is not in his place to hear this debate—he has the high office of Parliamentary Private Secretary to the Minister with responsibility for police and law and order. This is all his fault in a way. I think that he should be here to listen to the debate.
	It all goes back, as has been mentioned, to the "Today" programme listeners' poll at the end of 2003—

Rob Marris: Rigged.

Andrew Dismore: I will mention something about that later. My hon. Friend the Member for Ealing, North was somewhat hoist by his own petard as a result of that. He was rescued by the hon. Member for North Thanet (Mr. Gale), who picked up the issue later. I suspect that "Today" listeners were probably exercising disproportionate force on my hon. Friend, bearing in mind the number of times he appears on the programme, to try to teach him the error of his ways and persuade him that he should be a little less of a media junkie and a little more restrained about some things.

Sadiq Khan: What are my hon. Friend's views on Her Majesty's official Opposition having what listeners of a radio programme think as the main platform of their home affairs policy?

Andrew Dismore: My hon. Friend is right. I shall say a little more about the populist approach, or otherwise, of the Opposition a little later.
	This is the third Bill that has come before the House on the issue. My hon. Friend the Member for Ealing, North chickened out, rightly, after the poll came out. It was interesting to hear how he wriggled on the "Today" programme afterwards to get out of the difficulty. He was got out of the hole by the hon. Member for North Thanet, who introduced his own Bill, the Criminal Justice (Justifiable Conduct) Bill, in 2004.
	In the last Session of the previous Parliament, that was followed by the Bill introduced by the hon. Member for Newark (Patrick Mercer), the Criminal Law (Amendment) (Household Protection) Bill. He is right in saying that that Bill got a Second Reading but that was only because the Opposition decided to exercise their whip on a Friday, which I regard as a real breach of parliamentary practice. It is a private Members' day and should not be subject to party political whipping.

Sadiq Khan: As a new boy who has been here only six months, I am slightly confused because we do not have Whips on our side on a Friday. Will my hon. Friend explain what he means by his last comment about Opposition Members being whipped into line the last time such a Bill was before us?

Madam Deputy Speaker: Order. I hope that the hon. Member for Hendon (Mr. Dismore) will not stray too far in replying to that intervention.

Andrew Dismore: Of course. Basically, the convention is that Fridays are a private Members' day. The Whips should keep out of the business and we should, as private Members, progress with the business. Occasionally, rather peculiar results occur as a consequence. If a party whips on a Friday—not individual Members whipping but a party whipping—that is a gross disrespect to the House and private Members.

Nick Palmer: My hon. Friend will have noticed that the hon. Member for Newark (Patrick Mercer) did not respond directly to my question about whether he was asked by his party to introduce his Bill. Has my hon. Friend speculated whether the same may be the case with this Bill?

Andrew Dismore: One can but speculate. My hon. Friend is right. We see on a Friday the same Bill coming back time after time. Earlier this Session, we again had a Bill on reform of pensions, for example. A Bill on food labelling has been brought back time after time by different Opposition Members. One wonders sometimes where they get their ideas from—let us put it as neutrally as that.

Madam Deputy Speaker: Order. Perhaps we can now get back to discussing the Bill that is before the House.

Andrew Dismore: rose—

Roger Gale: Will the hon. Gentleman give way?

Andrew Dismore: Of course.

Roger Gale: As the hon. Gentleman and his colleagues are so determined to try to turn a cross-party issue into a partisan issue, perhaps he will tell me on behalf of his colleagues which of his parliamentary colleagues he condemns—the right hon. Member for Birkenhead (Mr. Field) or the hon. Member for Vauxhall (Kate Hoey), neither of whom sits on the Opposition Benches?

Andrew Dismore: I would simply say that on a Friday there is a free vote. Hon. Members are entitled to have their own views. I disagree with the position of my right hon. Friend the Member for Birkenhead (Mr. Field) and my hon. Friend the Member for Vauxhall (Kate Hoey) on this issue, as I have on a number of other private Members' Bills and Government Bills.
	One of the consequences of whipping on the previous occasion was that I was not able to make my speech on the Bill introduced by the hon. Member for Newark. I am grateful to the hon. Member for Vale of York for giving me the opportunity to explain my views on the issue. I shall be as brief as I can, concomitant with my duty to the House, and to the public, to ensure that the Bill is properly scrutinised on Second Reading. The right hon. Member for Bromley and Chislehurst (Mr. Forth) is not in his place at the moment but I am sure he would expect nothing less of me, bearing in mind his views on the importance of parliamentary scrutiny, particularly of private Members' Bills.

Nigel Evans: The hon. Gentleman will know that the Bill is a popular measure. How many of his constituents has he spoken to about it, and does not he believe that they would want it to pass?

Andrew Dismore: The hon. Gentleman is not alone in raising the popular sentiment behind the Bill, which I shall of course deal with a little later in my introductory remarks.

Sadiq Khan: Will my hon. Friend comment on the Bill's compatibility with the European convention on human rights? I am, of course, aware that he chairs the Joint Committee on Human Rights.

Andrew Dismore: Of course I shall. I have taken a particular interest in that, and although the Committee has yet to review the Bill, it issued a report on the Bill previously proposed by the hon. Member for Newark and there is very little difference in the human rights implications

Nick Palmer: In answer to the hon. Member for Ribble Valley (Mr. Evans), may I say that I conducted a survey of my constituents, some 2,100 of whom get e-mails from me on current issues? I asked about their views on the Bill. I was undecided at that stage and asked whether they would be interested in a reformulation of the law. I was really quite surprised that the majority of responses said that that would be mistaken and that they wanted a reaffirmation of the current position.

Andrew Dismore: I am sure that my hon. Friend's constituents are intelligent people who took the opportunity to read the background explanation of the present position that he doubtless offered them. Part of our problem with the current law is that people do not understand where they stand.
	What difference is there between today's Bill and that previously proposed by the hon. Member for Newark? The short title is different, and I shall say something about that later. There is a definition of "building" in clause 1(2), the Bill extends, through clause 2, to Northern Ireland, and there is a technical amendment to clause 3(2). There has been no attempt, however, other than in the definition of "building", to address any of the criticisms advanced on the previous Bill on Second Reading or in Committee. I am extremely surprised that that opportunity has not been taken as it means that I shall have to remind the House of some shortcomings, which may make my speech a little longer than it might otherwise have been.
	We all recognise the legitimate concern of a householder who has to defend himself or herself and his or her property against intruders. That is clearly a dreadful prospect for anyone to face, particularly when they are isolated or vulnerable or if they live in remote areas where help may not be close at hand. Whatever our differences over the Bill, we all recognise that those concerns are real and should be dealt with seriously and sympathetically. We all have a right to expect that our families should feel safe and secure in their own homes.

Sadiq Khan: Bearing in mind the seriousness with which most of us take this Bill, will my hon. Friend confirm that the parliamentary colleagues to whom he has spoken reaffirm and support wholeheartedly the right of householders, shopkeepers and others to defend themselves, their families and their properties with reasonable force?

Andrew Dismore: My hon. Friend is absolutely right. The issue between us is whether people should be able to defend their property reasonably and within the law or to make a disproportionate response.
	Being burgled is a frightening experience, and householders who react instinctively and attack intruders will be prosecuted under the existing law only if they use very excessive force. Only in the most extreme circumstances are householders prosecuted for violence against burglars. The Director of Public Prosecutions made it clear on 12 January that prosecution would be considered only in those extreme circumstances. The law also takes account of the fact that a person under attack or being robbed may be frightened or confused. When they find an intruder at 3 o'clock in the morning, a person cannot be expected to judge to a nicety the level of force that might be required to defend themselves against the threat posed. The law quite simply asks that the person should act instinctively and honestly. We must be clear about that: the law, and every part of the criminal justice system, must, and do, support the right to self-defence.

Janet Anderson: Is my hon. Friend aware of the press release issued by the Crown Prosecution Service in January, which makes that plain by saying:
	"Indeed we routinely refuse to prosecute those reacting in the heat of the moment to finding intruders within their homes. So householders who have killed burglars in this situation have not been prosecuted. Householders who have shot burglars have not been prosecuted. Householders who have stabbed burglars have not been prosecuted. Householders who have struck burglars on the head, fracturing their skulls, have not been prosecuted"?
	One wonders what exactly Conservative Members would like householders to be allowed to do.

Andrew Dismore: I am grateful to my hon. Friend for that and may refer later to some other points in that CPS memorandum. She is absolutely right: does the hon. Member for Vale of York want householders to have the right to hang, draw and quarter intruders, for example; or a gentleman in his castle to be able to pour boiling oil on them from the battlements? It is difficult to see what else householders should be permitted to do under the law.
	We should not underestimate the emotional impact of burglary. In the British crime survey 2004–05, 86 per cent. of respondents were emotionally affected by burglary, and if there was forced entry, too, the figure was 89 per cent. The responses experienced include: anger, at 56 per cent. for all burglaries and 63 per cent. for burglary with entry; annoyance, at 46 per cent. and 51 per cent. for burglary with entry; shock, for 36 per cent. at burglary and 42 per cent. at burglary with entry; and a loss of confidence or feeling of vulnerability, for 27 per cent. and 30 per cent. That illustrates how serious the offence of burglary is, and we need to take it seriously in the House.
	That said, I do not think that the Bill is an appropriate response. Much has been made by the Conservative party of the support that it claims the public have for the Bill. That raises the question of what the public actually know about the existing law. The Bill's proponents pray in aid various opinion polls, particularly that on the "Today" programme. Last time we debated this subject, my hon. Friend the Member for Ealing, North—the recipient, to put it neutrally, of the "Today" poll—made it clear that it was not an honest poll. He said that it was not
	"the honest listeners of Radio 4—as far as I can gather, they were all on the slopes at Chamonix at the time".
	The poll, he said, was in fact rigged by
	"a group of website gun fanatics, headed by an organisation called Cybershooters, who orchestrated a campaign against me."—[Official Report, 4 February 2005; Vol. 430, c. 1109.]
	One must question whether the "Today" programme was the victim of practices that one can compare only with the way in which people vote in "Big Brother", or similar television programmes, such as the dancing one on Saturday nights at present.
	It is interesting that the Conservative party is prepared to claim public support for how it has approached the Bill, but when it came to the recent Bill on terrorism, on which 76 per cent. of the public back the police on the 90-day minimum, 72 per cent. supported 90-day detention and 77 per cent. said the police should have the powers that they said they needed, the Conservatives, for purely opportunistic reasons, voted against the wishes of the public. How on earth have they the bottle to come here today claiming the support of the public—with no opinion polls to speak of behind them—given the very clear message from the public on that previous Bill? That smacks, at the very least, of double standards, and I shall not use the unparliamentary term hypocrisy.

Ian Austin: Is my hon. Friend as surprised as I am that we have been asked today to take seriously the views of a convicted criminal, a thief and a burglar, Brendon Fearon, yet on the 90-day terrorism issue we were asked to ignore the views of the police?

Andrew Dismore: My hon. Friend is absolutely right. The Conservative party prays it in aid that the police back the Bill, when in fact the police do not. The police certainly back the position advanced on a maximum detention period of 90 days, yet the Conservative party was not prepared to support them on that.

Sadiq Khan: Will my hon. Friend confirm that he will be accurately reporting the views of the Commissioner of Police of the Metropolis rather than giving an inaccurate summary of what the commissioner said in an interview?

Andrew Dismore: I certainly will refer to the comments of the commissioner, Sir Ian Blair, because I think that he has been misrepresented. During a long interview on the "Today" programme, on one's first day in the job, and given the range of issues relating to policing in London, it is perhaps easy to give an off-the-cuff answer without having had the opportunity properly to consider the response of both the police in London and the Association of Chief Police Officers to the issue in question. To an extent, perhaps Sir Ian was ambushed on his first day in the job.

Nick Palmer: Does my hon. Friend not feel that, on reflection, he is being a bit harsh on the Opposition? He claims that Opposition Members are aggressively pushing the Bill, but there are no Opposition Back Benchers in the Chamber.

Roger Gale: I beg the hon. Gentleman's pardon.

Andrew Dismore: My hon. Friend the Member for Broxtowe (Dr. Palmer) makes an important point. I am pleased that the hon. Member for North Thanet is in the Chamber. I have much respect for him. I know that he takes an interest in this matter, given his private Member's Bill. It is interesting that the only two Opposition Members in the Chamber, apart from the Opposition Whip, are those who have promoted Bills on this issue. No other Opposition Back Benchers are present. The only Liberal Democrat Member in the Chamber is the one on the Lib-Dem Front Bench, the hon. Member for East Dunbartonshire (Jo Swinson). Yet there are quite a number of Labour Back Benchers in their places, who are ready to give their views on the Bill.

Janet Anderson: Does my hon. Friend share my concern that the hon. Member for Vale of York (Miss McIntosh), the promoter of the Bill, has not even bothered to stay in her place to listen to the debate?

Andrew Dismore: I think that it is disgraceful that the hon. Lady is not present to listen to the debate.

Madam Deputy Speaker: Order. Perhaps we can now conduct the debate on the Bill rather than commenting on who is or is not present in the Chamber.

Andrew Dismore: Earlier on, Opposition Members were talking about the incidence of burglary. We must examine the true facts and figures. Burglary peaked in the mid-1990s. According to the British crime survey, domestic burglary from 1995 to 2004–05 reduced by 57 per cent. In 2003–04 to 2004–05, British crime survey and police statistics showed that domestic burglary was down by 20 per cent., and that non-domestic burglary was down by 14 per cent.
	The risk of being a victim of burglary has halved since 1995. On average, the chance of a burglary on a particular property is at its lowest for 20 years. On average, a property is likely to be burgled once every 50 years. In my constituency, in July, there were 45 fewer residential burglaries than in the previous year, and there were 48 per cent. more detections. That picks up the point made earlier about detection rates.
	We need to challenge some of the perceptions about the likely victims of burglary. We have heard a great deal about rural people and so forth. The people most likely to be victims of burglary are those aged between 16 and 24. Those least likely to be victims are pensioners. The people most likely to be burgled are those with household incomes of below £5,000. Those least likely have incomes of more than £30,000. The most likely victims are those in private rented property, closely followed by social renters. The least likely are owner-occupiers. The most likely are those who are unemployed or economically inactive. The most likely are those who live in flats and not detached houses. The most likely are those who live in urban areas, who are twice as likely to be a victim as those who live in rural areas, particularly people living on council estates. It is probably self-evident that those with high levels of home security are the least likely to be burgled as opposed to those who have no measures of home security. That starts to correct some of the perceptions.
	We need to consider also the number of offences in which violence was used in a burglary. In all burglaries, that was about 9 per cent. The prospect of being a victim of violence when a burglary is committed is very low. To an extent, Opposition Members have run a scare story to try to pretend that we are living in a crime-ridden country. In fact, the incidence of burglary is low, and the chance of being a victim of violence during a burglary is extremely low.

Ian Austin: One of my concerns about the Bill is that burglars, far from being deterred from breaking into people's houses, may arrive at the view that home owners are more likely to be arming themselves with guns and all the rest of it to defend themselves should they be burgled, and that they should arm themselves too. So if the Bill were to come into force, we may end up with an arms race and with more people being shot by burglars.

Andrew Dismore: My hon. Friend has amazing perception. He has raised the series of points that I intended to make.

Sadiq Khan: I appreciate how my hon. Friend is allowing those of us who are concerned about the victims of crime to intervene on him.
	Does my hon. Friend not think it bizarre and irrational that the Opposition appear willing to give the victims of crime in the home greater rights than the victims of crime in the streets? For example, is it not illogical and irrational that the victim of a rape in a park will be allowed to use only reasonable force to defend herself whereas the victim of a burglary in a house would be able to use grossly disproportionate force?

Andrew Dismore: My hon. Friend is absolutely right. I hope to address that issue at greater length when I come to analyse the Bill. To go into more detail, rape can be part of a burglary. A woman who is raped in her own home can use excessive force whereas a woman who is raped in a park cannot do so. That cannot be a sensible way forward.
	To deal with the intervention of my hon. Friend the Member for Dudley, North (Mr. Austin), I think that the Bill defeats its own object. Presumably the object is to make householders feel safer in their own homes and to deter burglaries. I think that the hon. Member for Newark said that the purpose of the Bill was to erode the confidence of burglars. I am concerned that the Bill will encourage people to have a go rather than to call the police. Unfortunately, bearing in mind the profile of burglars, these offenders tend to be younger men. We know that from the crime survey. I have gone through the profile of people who are likely to be the victims of burglary, and I think that the householder is the person who is most likely to come off worst if there is such a confrontation. We have heard examples of that.
	The best advice that a householder can be given is to call the police rather than to get stuck in with a burglar. I am concerned that, as a result of the Bill, householders, instead of just losing their jewellery and television, which is serious enough, will end up losing their lives. People will be encouraged to try to defend themselves, but they are likely to come off worst, especially if they are half asleep. Of course, the burglar will be wide awake and will have his senses fully about him.

Roger Gale: The hon. Gentleman is going down a ludicrous route. Is he seriously suggesting that a burglar will stand by while someone reaches for his telephone to call the police? Has he ever had his home burgled? Has he ever had his home violated? Does he begin to understand the offence that he is causing this morning?

Andrew Dismore: I am sorry that the hon. Gentleman thinks that I am causing offence. I disagree with him on the issue, but for perfectly logical reasons. He has a view of the Bill and I have a very different view. The hon. Gentleman's Bill would introduce the Oklahoma law, which would allow a householder to use whatever force he wanted to use against the burglar. There would be no arguments about disproportionate force or any other force. I shall talk about the Oklahoma law and its consequences shortly.
	The best advice should be always to phone the police. Best advice also is, generally speaking, not to mix it with the burglar if that can possibly be avoided.

Janet Anderson: Does my hon. Friend share my concern that the hon. Member for North Thanet (Mr. Gale) might be suggesting that people should not try to phone the police in these circumstances?

Andrew Dismore: I think that that can be the only inference, given what the hon. Gentleman is saying.

Sadiq Khan: I am concerned by the contributions of Opposition Members. Given the choice of having a panic button installed in one's home with a burglar alarm or purchasing a gun with a 10-year licence and having a safe in which to keep it, which option would my hon. Friend advise his constituents to take?

Andrew Dismore: My hon. Friend makes an important point about the need for hardening or protecting one's home against intruders. I shall refer to that later.
	My hon. Friend is right. Presumably someone who has a firearm will keep it under lock and key, as is required by firearms legislation. Is the hon. Member for North Thanet suggesting that someone should go down the stairs in his home, unlock the case, get the gun out and load it while the burglar stands by waiting to be shot, or is he suggesting that the firearm should be kept under the pillow in complete breach of firearms legislation?

Roger Gale: We know that the hon. Gentleman is here to filibuster and likely to speak for a long time, so the idea of not intervening is nonsense. For the record, he knows perfectly well that no Conservative Member has mentioned firearms at all.

Andrew Dismore: I am not sure that that is right. We will have to check Hansard, because I think that firearms have come up several times. I take great exception to the suggestion that I am filibustering. As the hon. Gentleman would expect, I have a lot to say about the Bill, but if I was filibustering, it would be in breach of the rules and you, Madam Deputy Speaker, would call me to order.

Ian Austin: My hon. Friend was asked whether he had been burgled. I can tell the House that I have been burgled three times and I well understand the shock and fury caused when one's home is invaded and one's private property is gone through. I, too, take great exception to being described, as we were earlier, as the burglar's friend. I do not recall referring to the hon. Member for North Thanet (Mr. Gale) as the terrorist's friend during the terrorism debate. Should he not withdraw the offensive remark that he made earlier?

Andrew Dismore: I do not think that I can add to my hon. Friend's point.

Roger Gale: The record will show that what I actually said was that it was as ludicrous to describe this Bill as partisan as it would be to describe every Labour Member as the burglar's friend—precisely the reverse of what the hon. Member for Dudley, North (Mr. Austin) suggested.

Madam Deputy Speaker: Order. May I suggest that the "Erskine May" maxim of good temper and moderation in parliamentary language be used for the remainder of the debate?

Andrew Dismore: That is my intention and I am grateful to the hon. Member for North Thanet for clarifying his position. I am sure that he is correct.

Robert Flello: We were discussing the possibility of someone removing a firearm from a locked case and using it. Is my hon. Friend aware of the case in which armed robbers threatened a pub landlord and barmaid with extreme violence and the barmaid escaped, fetched her employer's shotgun and shot one of the intruders? She was not prosecuted under the current law.

Andrew Dismore: My hon. Friend makes a good point. That case is more exceptional in that the barmaid was able to get the gun than in the fact that she was not prosecuted.
	The other way in which the Bill defeats its own object is that it encourages the setting of traps where people lie in wait for a burglar. Perhaps that is what the hon. Member for North Thanet has in mind in talking about how burglars should be confronted. There have been cases where people have been repeatedly burgled and it is a problem, but the answer is not the Bill and certainly not to set traps.
	I want to return to the risk of the escalation of violence if the burglar thinks that the householder is likely to have a firearm, knife, sword or other such weapon. In the last debate on this, there was a discussion of the merits of cricket bats and baseball equipment and I was pleased to note that my hon. Friend the Member for Ealing, North equipped himself with a cricket bat in good British tradition. The fact remains that, if householders are likely to have weapons of defence—there is nothing in the Bill to prevent it—burglars are more likely to be tooled up too and there will be an escalation of violence, or, as my hon. Friend the Member for Dudley, North put it, an arms race between the burglar and the householder.
	The other risk is that burglars may go for softer targets. They may think it too risky to choose households where people are armed with swords or knives. They will be less likely to confront the firearm-owning toff but more likely to invade the home of the old lady living alone. The Bill would have a disproportionate effect: the lord in his castle armed with his shotgun would mean that the burglar would be more likely to carry firearms, while the old lady in the Burnt Oak estate in my constituency would be at more risk of being severely beaten by an intruder. She would not be in a position to defend herself, not because of the law, under this Bill or the previous one, but because she is frail and the burglar has switched his modus operandi because he is frightened of attacking wealthier homes, which, as the figures I gave earlier show, are less likely targets anyway.

Robert Flello: Does my hon. Friend accept that many burglars commit burglaries to fuel a drug habit? If a burglar is high on an illegal substance, the last thing they will do is sit down and analyse whether there is a deterrent, be it a baseball bat or whatever. They will commit the crime to fuel the drug habit. The Opposition's argument that the measure will be a deterrent is nonsense.

Andrew Dismore: My hon. Friend makes the point clearly. If someone is under the influence of drugs or alcohol, the mental faculties and the ability to discriminate between right and wrong are inevitably impaired. We all know the phrase "Dutch courage". In those circumstances, the deterrent effect of the Bill would inevitably be significantly reduced.
	The Bill sits uneasily with the existing offence of aggravated burglary under section 10 of the Theft Act 1968. A person is guilty of aggravated burglary if he commits a burglary and at the time has with him any firearm or imitation firearm, any weapon of offence or any explosive. "Firearm" in those circumstances includes an airgun, air pistol or imitation firearm. "Weapon of offence" means any article made or adapted for use for causing injury to or incapacitating a person. If a burglar commits an offence while tooled up for violence, he is liable on conviction on indictment to imprisonment for life. The reason given by the criminal law revision committee for the creation of this offence is that burglary when in possession of the articles mentioned is so serious that it should be punishable with imprisonment for life.
	The Bill would lead to more offences under section 10 of the Theft Act because more burglars will go around more heavily armed. There will be a significant ramping up of the risk to householders from burglary.

Sadiq Khan: Will my hon. Friend comment on the practice of Wandsworth police, particularly in Tooting, who spend much time advising residents about locks on their windows and installing panic buttons and explaining to the elderly how to prevent burglary? That has led to crime figures, especially burglary, going down. Surely that is the advice we should give local residents, rather than telling them how to defend themselves with cricket or baseball bats.

Andrew Dismore: My hon. Friend is right. It is more important that people get adequate crime prevention advice. Protecting one's property against burglary is one of the best ways of defeating it.
	For another reason why the Bill defeats its own object one simply has to look at the Bill's long title. It is called the Criminal Law (Amendment) (Protection of Property) Bill. It is not the Protection of Householders Bill, as I think the previous Bill was entitled, or the Protection of Victims Bill. That gives it away. The Bill is about property, not about people, which is one of its most serious weaknesses. The Bill proposed by the hon. Member for Newark was specifically aimed at trying to help the domestic householder, whereas this Bill is aimed at protecting property.

Ian Austin: On the question of property, will my hon. Friend give me his assessment of the position? As I understand it, one would be covered by the Bill if someone broke into one's house to steal a television, but if someone was trying to steal a car parked outside the house, one would not be covered. It seems to me that there are also grey areas in the Bill's definition of property.

Andrew Dismore: My hon. Friend is absolutely right that the Bill is riddled with anomalies. If it has the fortune—or, rather, the misfortune—to pass its Second Reading today, those anomalies would have to be explored in great detail in Committee. If the Bill were passed in its present terms, it would create significant anomalies in the law and leave victims or those who face crime in the impossible position of not knowing where they stood. I hope to say a little more about that later when I debate the detail.

Nick Palmer: I apologise for having had to leave the Chamber temporarily. I want to check a point with my hon. Friend about the definition of "building" in the Bill. If one family were in a caravan and another in a tent on a campsite, the family in the caravan would be allowed to use the unreasonable force provision, but the family in the tent would not, because buildings cover caravans and not tents. Is that not another anomaly?

Andrew Dismore: My hon. Friend is absolutely right and he presages some of the remarks that I shall make later in my speech.
	The problem of the Bill being a protection of property measure also sits uneasily with the existing offence, which has developed over the years, of burglary in respect of a dwelling—it is set out fully in the eighth edition of the seminal work "The Law of Theft" by Professor Sir John Smith—for which a much more serious penalty is imposed.

Ian Austin: I am grateful to my hon. Friend for giving way again. On my understanding of the Bill, if one were out shopping and someone tried to steal something while one was in a covered shopping mall, using greater force would be justified because it is a building, but it would not be justified if one were in the high street. People would be covered in an indoor market, but not in an outside market—yet another anomaly on which I would be grateful if my hon. Friend would comment.

Andrew Dismore: My hon. Friend is absolutely right. There is no doubt that a shopping mall or department store, such as those in Oxford street, or at Brent Cross in my constituency, counts as buildings. Someone walking in the concourse area, even if not actually in a shop, would be covered by the provisions, but if they were in an outdoor market in my constituency, they would not. I believe that that is an anomaly.

Sadiq Khan: I am grateful to my hon. Friend for giving way so generously. He has already explained that the powers are not limited to houses or homes, but to any building. Does he agree that the person who uses force does not have to be the owner or even a legitimate resident and that the person using unreasonable force could himself be a trespasser?

Andrew Dismore: My hon. Friend is right about that and I intend to expand on the point in a few moments.
	I was making a point about burglary in respect of a dwelling. The law already recognises a distinction whereby burglary from a dwelling is a more serious offence. Those who commit such offences are subject to much more serious penalties under the law. It is regrettable that the original formulation proposed by the hon. Member for Newark has not been maintained in the present Bill, which attempts to stretch it way beyond what was initially intended—perhaps beyond what was intended by the people who voted in the listeners' poll on the "Today" programme. That is a problem not helped by the additional anomalies in the Bill.
	Reference was made earlier to the Oklahoma law, which it is important to look further into, particularly in respect of what happened as a consequence of that law. It provides an object lesson in what might happen here if the Bill were to find favour with the House.

Robert Flello: I am grateful to my hon. Friend for allowing so many interventions, which is welcome on the Government Benches. Before he moves on to discuss the Oklahoma law, will he say whether he believes that the Bill could provide an incentive to in-store security guards to be much more aggressive in stopping potential thieves before they leave the premises? It could lead to a disproportionate, but obviously not a grossly disproportionate, response by security guards in apprehending offenders before they pass through the door of the shops and go into the street outside.

Andrew Dismore: My hon. Friend makes an entirely correct and very good point. Currently, if a shoplifter tries to leave the premises—technically, they are committing a burglary under theft legislation—the security guard can use reasonable force to detain them. In other words, if the shoplifter is trying to escape, the guard can grab hold of them and detain them, pending the arrival of the police. Under this Bill, if the shoplifter tried to escape there would be nothing to prevent them from being beaten half unconscious, simply because they had tried to walk out with stolen goods. Of course, the problem is even greater for people who leave the shop by mistake, having picked up an item and forgotten to pay for it. Such people may appear to be shoplifters, but in fact they have made a genuine mistake. By the time the mistake comes to light, however, they could be lying on the floor in a pool of blood.

Robert Flello: So one could almost say that this Bill is a licence for the beating of grannies who have accidentally put something in their pocket.

Andrew Dismore: Elderly and confused people in the early stages of Alzheimer's sometimes making such mistakes is a well-known phenomenon. My hon. Friend is absolutely right: they could face physical violence from security guards who may go a little over the top, knowing that, under this Bill, they would not be prosecuted.

Sadiq Khan: rose—

Andrew Dismore: I give way to my hon. Friend the Member for Tooting (Mr. Khan).

Sadiq Khan: The delay in my rising is the consequence of my just having come to terms with the implications of this draconian and absurd Bill. Will my hon. Friend confirm that in discussing the Oklahoma law, he will talk about the number of people who have been shot dead as a result of it? Will he further confirm that it is referred to locally as the "Make my day" law?

Andrew Dismore: My hon. Friend is right: the Oklahoma law has nothing to do with the musical of the same name; it has been named after Mr. Clint Eastwood's famous line—"Make my day, punk"—from the motion picture "Dirty Harry". Under the "Make my day" law, in effect, anyone who dares to enter someone else's property can be shot dead; any force is permitted. It goes further than the Bill before us today, but in the direction that the hon. Member for North Thanet wanted to go with his Bill, had it made progress.
	Although we are not debating the Oklahoma Bill today, we can draw some conclusions from its effect on crime rates, particularly those for burglary, and decide whether it achieve its claimed objective. Given that it contains even tougher measures than those in the Bill before us, if it did not work in Oklahoma, one can only assume that this Bill would make no difference whatsoever to the incidence of burglary. Between the Oklahoma law's introduction in 1987 and 2000, there was a 48.5 per cent. fall in burglaries. Very good, but that is almost exactly the same as the decline in burglary in the United States as a whole, where the law was not nationwide. So in fact, the law made practically no difference whatsoever to that decline. Even more interestingly, under existing provisions allowing homeowners to defend themselves, UK burglary figures have fallen even further, over a shorter period, than those for Oklahoma or for the US in general.

Ian Austin: Will my hon. Friend reflect on the appalling situation whereby home owners in the US are being attacked and shot with their own weapons? In some instances, the burglar has broken in and the home owner has produced their gun, only for the burglar to grab it and shoot the home owner. I should also correct my hon. Friend's earlier point: I believe that Clint Eastwood actually said, "Go ahead, punk, make my day."

Andrew Dismore: In fact, I think that the film was "Sudden Impact", rather than "Dirty Harry". However, we have the right actor, even if I named the wrong movie and got the quote wrong; the Oklahoma law is certainly known as the "Make my day" law. Perhaps we can move out of the movie theatre, so that I can draw my introductory remarks to a close and turn to the Bill's detail.
	The Bill in effect changes the law of self-defence in relation to burglary. The current law of self-defence is set out in section 3(1) of the Criminal Law Act 1967:
	"A person may use such force as is reasonable in the circumstances in the prevention of crime, or in effecting or assisting in the lawful arrest of offenders or suspected offenders or of persons unlawfully at large."
	That is a very general definition. For a little more detail, one must go to the bible of criminal law, "Archbold"s Criminal Pleadings, Evidence and Practice". I consulted the 2005 edition, which states that the provisions of section 3
	"cover the great majority of cases of self-defence and defence of others, and many cases of defence of property"—
	which is what we are talking about—
	"for in these cases the person who uses lawful force will be doing so for the purpose of preventing crime."
	"Archbold" notes that section 3 reflects the common law.
	The common law was well set out by the eminent Law Lord, Lord Morris of Borth-y-Gest, in the Privy Council case of Palmer v. the Crown in 1971. Lord Morris said that
	"the defence of self-defence is one which can be and will be readily understood by any jury. It is a straightforward conception. It involves no abstruse legal thought . . . Only common sense is needed for its understanding. It is both good law and good sense that a man who is attacked may defend himself. It is both good law and good sense that he may only do, but may only do, what is reasonably necessary. But everything will depend upon the particular facts and circumstances. Of these a jury can decide".

Sadiq Khan: I am glad that my hon. Friend mentioned the common law defence. He will be aware that "Archbold" also suggests that section 3 would not cover all cases of defence of the person, noting that if a person was attacked by someone who was insane, so as not to be responsible in law for his acts, the common law defence would apply and kick in. Is not one of the problems with the Bill, introduced by Her Majesty's official Opposition, that there would be a difference between the statutory defence and the common law defence? If the Bill was passed, there would be a differential law that was less generous to an insane person than statutory law.

Andrew Dismore: My hon. Friend makes a good point and I can add nothing to it. I was not planning to raise that issue so I am grateful to him for doing so.
	Lord Morris went on to say:
	"If there is some relatively minor attack it would not be common sense to permit some action of retaliation which was wholly out of proportion to the necessities of the situation."
	That is what the Bill would create: a situation in which a relatively minor attack could be met by something completely out of proportion. Lord Morris continued:
	"If the attack is all over and no sort of peril remains then the employment of force may be by way of revenge or punishment or by way of paying off an old score . . . There may no longer be any link with a necessity of defence."
	That position is not covered by the Bill, but many people may think that it was and they could be criminalised. Under the present law, they may hold back.

Nick Palmer: Does not that illustrate the point I made earlier? Although we have to accept that members of the public feel that the current law has grey areas, the Bill would only move us to a new grey area, with new dangers and a different set of circumstances under which people could be prosecuted. We could make the situation worse.

Andrew Dismore: My hon. Friend is right. There would still be a grey area because we would still be arguing about what was or was not excessive force, but there would be a further grey area, perhaps tinged with red blood, in that the issues with which we would be dealing would be the consequences of much greater violence.
	Lord Morris also said:
	"If there has been an attack so that defence is reasonably necessary, it will be recognised that a person defending himself cannot weigh to a nicety the exact measure of his defensive action. If the jury thought that in a moment of unexpected anguish a person attacked had only done what he honestly and instinctively thought necessary, that would be the most potent evidence that only reasonable defensive action had been taken."
	In other words, the current law is rooted in common sense. My concern is that what we are being asked to agree to goes way beyond that. It is not common sense. It would make things far worse.

Janet Anderson: Conservative Members have made great play of the fact that the Bill would act as a deterrent, yet the only evidence they have been able to produce was given by one convicted burglar.

Sadiq Khan: Who was shot in the buttocks.

Andrew Dismore: My hon. Friend the Member for Rossendale and Darwen (Janet Anderson) makes the point clearly and my hon. Friend the Member for Tooting also makes the point that the burglar in question was not exactly an objective observer of the situation, as he was a victim, having been shot in the buttocks. His view of what may or may not be appropriate could be rather different from that of a burglar who has yet to experience a response from a householder.

Sadiq Khan: I am not sure whether my hon. Friend has moved off Palmer, but my intervention is about the Palmer point. My hon. Friend quotes Lord Morris and refers implicitly to the subjective and objective test. Does he agree that the test of whether force used in self-defence is reasonable is largely objective? However, the last sentence of the quote from Lord Morris emphasises that there are subjective elements that would depend on a defendant's specific circumstances. That means that the safeguards that we all want are in the law at present, so the Bill is clearly redundant.

Andrew Dismore: My hon. Friend makes an important point. He is right that when we consider self-defence, we have a mixed objective and subjective test. There is a slightly different test in the civil law, and I hope to refer to that shortly because the simple alignment of civil and criminal law is prayed in aid by those who support the Bill. However, the measure set out in the Bill is an objective test, so we are all over the place. Are we considering the mind of the person who commits an attack on the alleged criminal, the general reasonableness test, or a mixture of the two? The whole position will be very different depending on the circumstances in which an attack takes place.

Sadiq Khan: Does my hon. Friend agree that if those who support the Bill are serious about getting it on to the statute book, it is disappointing that such matters have not been clarified since the last time that the House considered such a measure?

Andrew Dismore: My hon. Friend is absolutely right. A series of criticisms were made on Second Reading of the previous version of the Bill that was promoted by the hon. Member for Newark. I am surprised that the opportunity was not taken in the intervening period to get some of the tackle in order and produce a Bill that at least addressed some of those problems, which might have found more favour in the House today.

Robert Flello: Does my hon. Friend agree that the existing legislation works and is sound, but is not widely understood by the public? I am sad that the promoter of the Bill, the hon. Member for Vale of York (Miss McIntosh), is not in the Chamber and is thus unable to hear what are hopefully my pearls of wisdom. Does my hon. Friend thus agree that Opposition Members would have done better to direct their energies at making the public more aware of the existing legislation and how it can be used to protect the householder and property owner?

Andrew Dismore: My hon. Friend is right. The Bill has effectively suggested to people that they have a weaker right to defend themselves than they actually do. It is confusing the position to such an extent that people do not know where they stand. If Opposition Members had been acting responsibly, they would have given out copies of the CPS leaflet in their constituencies. I distributed a large number of those leaflets so that people would know where they stood if they faced such a situation. It would have been rather more constructive if Opposition Members had explained what the policies of the CPS were and what the law was, instead of trying to frighten people into thinking on the one hand that they cannot defend themselves, and on the other that the country is rife with burglary.

Janet Anderson: Does my hon. Friend agree that this is yet another example of Her Majesty's official Opposition ignoring the advice of the police? We know that the Association of Chief Police Officers does not think that the Bill is necessary, so Opposition Members are behaving in the same way in which they did when they ignored the advice of the police about the Terrorism Bill and refused to support the Government.

Andrew Dismore: My hon. Friend is absolutely right. I made that point a little earlier, but perhaps she was not in the Chamber at that stage. The Opposition have operated something of a double standard—I put that neutrally, bearing in mind Madam Deputy Speaker's earlier constraints on the use of emotive language in the debate.

Sadiq Khan: My hon. Friend explained the sensible and mature way in which he behaved as an MP by ensuring that his constituents were aware of the CPS guidance. Is he talking about the joint public statement of the CPS and ACPO that was issued earlier this year? He has not yet referred to guidance in his speech, so as I prepare for my speech, will he confirm whether he will do so?

Andrew Dismore: I hope to deal with that shortly, because it is important that we understand where the law stands.
	I was talking about the black letter law expounded by Lord Morris, who was explaining the common law in the case of Palmer. Basically, it is a common sense test, and who can object to that? Many other myths have developed. In paragraph 19.42 in the section on offences against the person in "Archbold", the old rule that a man who is attacked must retreat as far as he can has disappeared. Whether the accused retreated is only one factor for the jury to consider when determining whether force was reasonably necessary. Moreover, the same paragraph states that there is no rule of law that a man must wait until he is struck before striking in self-defence. If another person strikes at him he is entitled to make his blow first if it is reasonably necessary to do so in self-defence. The existing law therefore goes further than most people think.
	Moreover, if the defence of self-defence is offered, the burden of disproving it is on the prosecution, not on the defendant facing trial. "Archbold" says that where such a defence is offered, the burden of negativing it rests on the prosecution. If, on consideration of all the evidence, the jury is convinced of the innocence of the prisoner—"Archbold" uses old terminology because it is citing an old case—or is left in doubt as to whether he was acting in necessary self-defence it should acquit. In the Crown v. Abraham the Court of Appeal said that a judge should deal with the issue by telling the jury that someone who acts reasonably in self-defence commits no unlawful act. Just as it is for the Crown to show that the plea of not guilty is not acceptable, so the Crown must convince the jury beyond reasonable doubt that self-defence has no basis in the present case. There are therefore many safeguards in the existing law.
	We must also look at the charging standard text used by the CPS, which was published on 26 November 2004 and tells CPS staff how they should approach such cases. Prosecutors must consider all assaults in the context in which they were allegedly committed. Particular care must be taken in dealing with cases of assault where the allegation is made by a "victim" who, at the time, was engaged in criminal activity himself. An example relevant to today's debate is a burglar who claims to have been assaulted by the occupier of the premises concerned. Prosecutors are reminded that it is lawful to use reasonable force in the following circumstances—self-defence; to defend another person; to defend property; to prevent crime; and to lawfully arrest someone. Where the use of force in such circumstances is reasonable the assailant—the person about whom we are concerned—has an absolute defence, and charges relating to the assault should not be brought. Paragraph 5 of the CPS charging standard text therefore sets out the position in black and white.
	The advice to prosecutors continues:
	"In assessing the reasonableness of the force two questions should be asked: was the force used justified in all the circumstances? . . . and was the first force used excessive"?
	The courts have shown that both questions are to be answered on the basis of the facts, as the accused—the householder—honestly believed them to be. To return to my exchange with my hon. Friend the Member for Tooting, the test is a subjective one. The issue of whether a reasonable person would regard the force used as reasonable or excessive is the subsequent question, not the primary question.

Sadiq Khan: My hon. Friend gave figures for the decreasing number of burglaries in the past 20 years. Last year, there were 943,000 burglaries, which is the lowest figure for 20 years. There have been approximately 10 million burglaries in the past 15 years, but there have been only seven cases in which a householder has been prosecuted for defending himself against an intruder. Does that not confirm that the CPS is applying the guidance that he cited correctly?

Andrew Dismore: My hon. Friend is basically right, and I hope that we can analyse some cases in more detail later. Many of the cases that have been prayed in aid by the Opposition predate the guidance in the CPS charging standard text, which was published in November 2004. They certainly predate the joint statement by the CPS and ACPO, which was first published in January 2005 and subsequently produced as a leaflet.
	I am not aware, and I will happily give way to any hon. Member in the Chamber from any quarter who has information to the contrary, of a single case that has been prosecuted against a householder defending himself since those new guidelines and the joint statement were published.

Janet Anderson: I am sure my hon. Friend is aware that the leaflet to which he referred, the joint statement from the CPS and ACPO, makes it clear that householders do not have to wait to be attacked before they can take action. It states:
	". . . if you are in your own home and in fear for yourself or others. In those circumstances the law does not require you to wait to be attacked before using defensive force yourself."

Andrew Dismore: My hon. Friend is right. The statement was welcome, as it clarified the law. As I said, I was able to obtain a number of copies—several thousand—which I distributed door to door, to people who had raised crime issues with me in my constituency. Letting people know where they stood was a far more constructive way to approach the debate than the Opposition's attempt to change the law.

Sadiq Khan: My hon. Friend may wish to point out, for the record, that it is clear from the Library research paper and from other research that I have done that there are no current cases where a householder is being prosecuted.

Andrew Dismore: I am grateful to my hon. Friend for that intervention. That is exactly the case. The guidance from the Crown Prosecution Service and the statement from ACPO and the CPS have made the position much clearer and people now know where they stand.

Robert Flello: I am disappointed that the hon. Member for Newark (Patrick Mercer) has just left his place. I had hoped to get the intervention in while he was still in the Chamber. I would be interested to hear my hon. Friend's comments on my previous intervention on the hon. Member for Newark, when I referred to the case that was cited. The individual in question was arrested and would still be arrested under the proposal in the Bill. The second intervention, which I sadly was not permitted, was intended to highlight the fact that the CPS guidance to which my hon. Friend refers would address that issue and would not allow that to happen under the current law dealing with reasonable force.

Andrew Dismore: My hon. Friend makes the point clearly. It would be helpful to the House if we looked at what the ACPO and CPS statement says. It accepts at the beginning:
	"It is a rare and frightening prospect to be confronted by an intruder in your own home."
	By issuing the statement, the two bodies are responding to public concern about householders defending themselves. It goes on to state quite clearly:
	"Anyone can use reasonable force to protect themselves or others . . . You are not expected to make fine judgements over the level of force you use in the heat of the moment. So long as you only do what you honestly and instinctively believe is necessary in the heat of the moment, that would be the strongest evidence of you acting lawfully and in self-defence. This is still the case if you use something to hand as a weapon.
	As a general rule, the more extreme the circumstances and the fear felt, the more force you can lawfully use in self-defence."
	It goes on to say, as we heard from my hon. Friend the Member for Rossendale and Darwen, that
	"the law does not require you to wait to be attacked before using defensive force yourself."

Nick Palmer: One point that has not been explored in detail yet is that the Bill states that even grossly disproportionate force can be used if the person using that force was not aware that it was grossly disproportionate. Does that not open an enormous grey area, which is not present in the current law? In the current law there is the test of reasonableness that juries interpret in a reasonable way. Under the Bill, if I can persuade the jury that I was not aware that it was grossly disproportionate to stab somebody who had just walked on to my garden, I would be required to be acquitted. Is that not a very large grey area?

Andrew Dismore: My hon. Friend raises an interesting point which is to do with what the law calls mens rea. To be honest and fair to the promoter of the Bill, I am not entirely sure that my hon. Friend has construed the Bill accurately in that respect, but I hope to come to the issue in due course.
	Before that intervention, I was referring to the joint statement by the CPS and ACPO, which deals with what happens if an intruder dies. It makes it clear that if a householder acts in reasonable self-defence and an intruder dies, then the householder will still have acted lawfully. However, it goes on to caution that if, having knocked someone unconscious, a householder decides to hurt or kill an intruder in order to punish them, or if a householder knows about an intended intruder and sets a trap to hurt or kill them, that householder would be acting with excessive and gratuitous force. In such cases, the householder would be prosecuted under the existing law. Even if the Bill were passed, a householder in those circumstances would still be prosecuted. Where is the additional advantage to the public from that change?
	One of the concerns that has been expressed today is about what happens if the police turn up and believe the intruder rather than the householder. The statement makes it clear that
	"The police weight all the facts when investigating an incident. This includes the fact that the intruder caused the situation to arise in the first place."
	However, it also makes the fair point that investigations are necessary, because
	"On occasions people pretend a burglary has taken place to cover up other crimes such as a fight between drug dealers."
	Importantly, the police and the CPS have said that they are determined that when cases are investigated,
	"they must be investigated and reviewed as swiftly and as sympathetically as possible . . . An experienced investigator will oversee the case . . . and the case will be prioritised to ensure . . . a quick decision."
	The statement concludes:
	"It is a fact that very few householders have ever been prosecuted for actions resulting from the use of force against intruders."
	On the day before that statement was issued, the Director of Public Prosecutions, Mr. Ken Macdonald QC, who is in a sense the chief prosecutor in the country, made his position clear:
	"The law is on the side of householders . . . It is only in the most extreme circumstances that householders are prosecuted for violence against burglars . . . the law understands that when people are under attack in their own homes they cannot judge precisely the level of their response . . . So long as they do no more than they honestly and instinctively feel is necessary in the heat of the moment, that will be the strongest evidence that the householder has acted lawfully. Indeed we routinely refuse to prosecute those reacting in the heat of the moment . . . So householders who have killed burglars . . . have not been prosecuted. Householders who have shot burglars have not been prosecuted. Householders who have stabbed burglars have not been prosecuted. Householders who have struck burglars on the head, fracturing their skulls, have not been not prosecuted."
	Mr. Macdonald goes on to say that the CPS has been able to find only a handful cases in which prosecutions have resulted from domestic household burglaries.

Robert Flello: Is my hon. Friend surprised to hear that in informal conversations with serving police officers at a level far junior to that which he has just quoted, those officers all expressed the view that cases in which a householder takes reasonable steps in confronting a burglar never even reach the point at which charges are laid, unless the householder in question brags that they were lying in wait? Police officers use their common sense when they see that people have behaved reasonably.

Andrew Dismore: My hon. Friend is right. That is the common sense required by the Crown v. Palmer and the dictum of Lord Morris, when he set out the law more than 30 years ago. The present position was best summed up by the Under-Secretary of State for the Home Department, my hon. Friend the Member for Wythenshawe and Sale, East (Paul Goggins), who replied to the debate on the Bill introduced by the hon. Member for Newark:
	"There are three levels to the provision: first, we have the law,"
	which I have described as the black letter law,
	"which the Government believe is perfectly adequate"—
	most Labour Members share that view—
	"to allow householders to take whatever steps are necessary to defend themselves and their families . . . secondly, the leaflet explains that law in simple, straightforward terms to the general public . . . thirdly, we have the guidance against which the police and the CPS weigh each case."—[Official Report, 4 February 2005; Vol. 430, c. 1132.]
	That belt and braces approach has borne fruit, which is why we have seen no prosecutions whatsoever since those changes were introduced more than a year ago.

Sadiq Khan: There is another safeguard in the event that a case slips through the net and is prosecuted—the common sense of the jury who will consider all the circumstances. My hon. Friend will be aware from his experience in a previous life that juries are very sensible. I am sure that the jury would acquit in a case where a householder had used force that was reasonable.

Andrew Dismore: My hon. Friend is right. Juries have common sense. Most of the few cases that did reach trial resulted in the acquittal of those involved, and I believe that those that did not reach trial would have resulted in convictions under the proposed law.
	Why change the law? There is no support to speak of from those involved professionally, who actually have to deal with the problem—although I know that the Conservatives like to ignore professional advice, as we saw in relation to terrorism. My hon. Friend the Member for Stoke-on-Trent, South (Mr. Flello) mentioned police on the beat, and we could cite more senior police.
	Perhaps however we should start with the example of an extremely eminent QC who is a Member of this House—the Leader of the Opposition, for a few more days. When he was Home Secretary, he said:
	"Specifically on the law on self-defence, I am satisfied that the individual should always be able to defend himself, his family and his property, as long as he only uses force that is both reasonable and necessary. I am not currently persuaded that there is a need to change the law."—[Official Report, 14 December 1993; Vol. 234, c. 533W.]

Sadiq Khan: Until now I have been with my hon. Friend, but my basic rule has always been that if the right hon. and learned Member for Folkestone and Hythe (Mr. Howard) believes that something is right, I believe that it is wrong.

Andrew Dismore: I am grateful for my hon. Friend's comments. We must wait and see what attitude is taken by the forthcoming Leader of the Opposition. The candidate in question may well believe in consensus politics and working together, and will decide that the existing law is satisfactory. That might assuage my hon. Friend's concerns.

Dan Norris: It is not for me to defend the Leader of the Opposition, but several of his colleagues are here to put the case for the Bill, whereas only one Liberal Democrat Member has been present all morning.

Andrew Dismore: That has been remarked upon before.
	The hon. Member for North Thanet challenged me to say why I do not agree with my right hon. Friend the Member for Birkenhead and my hon. Friend the Member for Vauxhall about the Bill. Perhaps I could ask him why he does not agree with the Leader of the Opposition, who made his position absolutely clear.

Roger Gale: My right hon. and learned Friend expressed a point of view in 1993, as the hon. Gentleman suggests, but changed his view in the light of subsequent experience. That is why he and the Conservative party supported the Bill promoted by my hon. Friend the Member for Newark.

Andrew Dismore: I am pleased to hear the hon. Gentleman confirm a U-turn on the part of the Conservative party, although it may have been in the wrong direction, as was reflected in the local elections earlier in the year. Perhaps that provides my hon. Friend the Member for Tooting with the reassurance that he no longer runs the risk of finding himself in the same Division Lobby as the right hon. and learned Member for Folkestone and Hythe.

Sadiq Khan: That allays the minor concern that I had, and I can now confidently, positively and happily support my hon. Friend's stance.

Andrew Dismore: I am grateful to my hon. Friend for clarifying his position.
	The position of the Association of Chief Police Officers has not changed since the hon. Member for Newark introduced his Bill. When the leaflet that I mentioned was launched, Chris Fox, the then ACPO chair, said:
	"We want everyone to clearly understand that they can use force to protect themselves or others. The force used should be reasonable force."
	Sir Ian Blair, the Metropolitan police commissioner, gave his support to the ACPO position after the problems that he had had on the "Today" programme on his first day. The Metropolitan police have since indicated that that remains their position. We already know that the Director of Public Prosecutions is of the same view.
	Mr. Anthony Scrivener QC, who was Tony Martin's barrister, has said on several occasions that he believes that the law is right. On 14 December 2004r, he said in the Eastern Daily Press:
	"The law is simple and weighted overwhelmingly in favour of the householder."
	On 15 December 2004, The Times quoted him as saying:
	"Even if the suggested test of grossly disproportionate force had been used it is likely that the jury would still have convicted."
	He went on to say:
	"The law is quite right to favour the use of force against them"—
	the intruders—
	"in such a situation, as it already does".

Sadiq Khan: One of the reasons why weight should be given to Mr. Scrivener's comments is that he was the leading counsel for Mr. Martin. Is not another reason why his comments have gravitas the fact that he is a former chairman of the Bar Council?

Andrew Dismore: My hon. Friend is absolutely right. My only difference with Mr. Scrivener was when he decided to take Lady Porter's shilling and to defend her in the House of Lords. We parted company at that point; up till then, I had had a lot of respect for him. That slightly took the edge off my admiration for him in terms of the briefs that he took, although obviously it did not detract from his advice in this particular case.

Sadiq Khan: I am sure that my hon. Friend recognises the cab rank rule. I am sure that he understands that Mr. Scrivener's decision to take that case was based on that rule rather than on any personal views he may have had.

Andrew Dismore: I am sure that is so, but perhaps some cabs are more expensive than others—let us put it that way.
	I should now like to examine the Bill in detail, because the problems really start to emerge when we try to construe the consequences of the provisions in their present form.

Robert Flello: Before my hon. Friend moves on from quoting notable individuals, will he tell me his reaction to the point that it is okay for the Leader of the Opposition to have changed his view, but not, it would seem, for the incoming chief constable to have done so?

Andrew Dismore: My hon. Friend has made a good point. I suspect that Sir Ian Blair was caught unawares during a long interview on the "Today" programme, that he took the earliest opportunity to correct the impression that he may have given, and that he then fell in line with ACPO. Unfortunately, it seems to have taken the right hon. and learned Member for Folkestone and Hythe more than a decade to change his position. One can draw whatever conclusions one wishes from that.
	Clause 1(2) would introduce a new subsection (1A) to the Criminal Law Act 1967. The very first words in that proposed new subsection create problems. They are:
	"Where a person uses force".
	What is meant by "person" in these circumstances? It could be anybody. The provision is not confined to a householder, as it was in the Bill introduced by the hon. Member for Newark. It is not confined to a legal resident, or even to a security guard. "A person" could be anyone at all. It could be a squatter taking action against the lawful owner of the property who had come to try to remove his possessions or repossess the property. Under the Bill, a squatter would be entitled to use disproportionate force, so long as it was not excessive, against the legal owner of the property. Is that how the alleged party of law and order believes the Bill should be interpreted?

Nick Palmer: Could not the person be another criminal, seeking to steal the same property, attempting to deter his rival from getting there first? Would not he be entitled to use disproportionate force in those circumstances?

Andrew Dismore: My hon. Friend is absolutely right. We might see some further examples as the debate progresses.
	What would happen when the police turned up and found the body on the carpet, Agatha Christie-style, and drew their chalk line round it? What would happen then? The attacker/householder might say that the victim was a burglar, an intruder, or a trespasser. How could the police check that, especially if both parties had a criminal history, as my hon. Friend the Member for Broxtowe suggested? For example, both might be drug dealers. Such a possibility was highlighted in the ACPO leaflet, which stated that the police had to investigate such cases because things were not always as they seemed.
	Alternatively, to give a more innocent example, let us suppose that there was a dispute between two neighbours. We have all had to deal with those in our constituency surgeries. Let us suppose that two neighbours have fallen out and one is found dead on the kitchen floor of the other. The householder says, "Well, he may be my neighbour, but he was coming to pinch my belongings." The neighbour might have come round to argue about the ball going over the fence or the noisy stereo, but we have no way of knowing that, and disproportionate force would have been used. The risk of revenge and pursuit attacks is created by the Bill.
	The Bill states that a person can pray in aid the defence provided by the Bill if they are in a building, but also refers to protection of personal property. One of my problems with the Bill is that the person might forget that the law changes the moment they leave the front door. Different rules apply if someone chases a burglar down the street as opposed to when the burglar is inside the property.

Jim Dowd: My hon. Friend is much more skilled and learned in these matters than I, but as I read the Bill, it would apply to any building or part of a building. As I understand it, therefore, the law would change when a person went through the front door but was still on someone's property, let alone on a public highway.

Andrew Dismore: My hon. Friend is right. When we come to consider the Bill in more detail, we will need to spend some time on the definition of "building", because it creates a series of additional anomalies beyond the obvious one that my hon. Friend has rightly and quickly spotted.

Sadiq Khan: The problem with the lack of definition is compounded by the point raised by my hon. Friend the Member for Lewisham, West (Jim Dowd). The Bill refers not only to a person in the property that he occupies or owns, but to any person in any building or part of a building. What happens, for example, to a person who happens to exit a property on an estate? If, in exiting the front door, that person is still within the building, let us compare and contrast that with the position for someone who exits a terraced property on to the street. Does not my hon. Friend agree that the position is absurd?

Andrew Dismore: My hon. Friend is absolutely right, and I hope that we shall receive a proper explanation of the definition of "building", which is rather vague in the Bill.

Robert Flello: Would it not be possible to have a bizarre, cartoon-like nonsense with someone running from building to building, and it is okay to use disproportionate force when they are in a building, but not okay when they are not. The perpetrator might do everything to avoid running into a building so that he cannot have disproportionate force inflicted on him. He will run for the nearest piece of open ground rather than being trapped in any building.

Andrew Dismore: My hon. Friend's suggestion is not as far-fetched as it might seem. When I was a Westminster councillor, my council ward had large blocks of flats that were joined together by walkways. One of the problems experienced by the police was people running from one building along the walkways, which were open and therefore not part of the building, into the next building. They ran round and round the maze of the estate in that way to avoid the police. My hon. Friend is right that if the police or a householder grabbed them in a flat or in the corridor, they could use excessive force, but if they grabbed them on the walkway, they could only use reasonable force. How can that be common sense? That is the consequence of the Bill as drafted, however.

Sadiq Khan: My hon. Friend has given examples of crime statistics, showing that our constituents in urban areas are more likely to be victims of crime than those in rural areas. Is not the lack of definition and clarity in relation to "building" another example of the arrogance of Conservative Members who wish to pass a Bill that would only assist, in a limited way, parts of certain constituencies?

Andrew Dismore: I think that my hon. Friend is a little harsh in talking of arrogance; I think that it is probably ignorance of how the other half lives, given the rarefied circles in which Conservative Members might mix. I mentioned earlier that, according to the burglary figures, the most likely victims of burglaries are those living on council estates on modest incomes, rather than the lord in his castle or the detached householder in the country. Conservative Members seem to have overlooked the statistics in favour of a good headline, however.

Nick Palmer: To be fair, the Bill does attempt to clarify the meaning of
	"building or part of a building"
	by referring to section 9 of the Theft Act 1968, under which any inhabited vehicle or vessel is covered. Case law has established that a large freezer standing in a farmyard counts as a building. Does the proposed law not bring us into the realm of the ridiculous, where a struggle will vary in its terms depending on whether one has stumbled into a yard or a freezer, got into a car or whatever?

Andrew Dismore: My hon. Friend makes an important point. We must look at section 9 of the Theft Act later when we consider the question of building in a little more detail. We have seen examples of a number of anomalies so far but we are only scratching the surface. When we start to examine what the Theft Act says and wider case law, beyond the example that my hon. Friend provides, we will see how ridiculous the consequences of the Bill may be.

Robert Flello: If my understanding is correct, a thief running from a building who is desperate not to run into another building will not use a getaway car. He will use a getaway pushbike; otherwise, he could be in a building under the Theft Act and subject to a more disproportionate action.

Andrew Dismore: I think that my hon. Friend is wrong in that respect because—my hon. Friend the Member for Broxtowe may have been highlighting the problem—when one examines all the definitions of "vehicle", one realises that it may not actually mean a vehicle. It is a little more confusing than that, as will become apparent when I look at the definition of "building" later in my remarks.

Chris Bryant: My hon. Friend seemed to suggest that Conservative Members think that they are creating something that meets the needs of those in rural communities. I used to live on a farm in Stanleytown in the Rhondda. On one occasion, I saw people at the other end of the barn, which was at the end of a field. If one were going to investigate that, which many farmers might want to do, one would not want three different sets of laws to be governing what use of force one could use. Therefore, the Bill fails to meet the needs not just of people living in cities, but people living in rural areas.

Andrew Dismore: My hon. Friend is right. The problem with the Bill is that it creates so many anomalies that people will not know where they stand. At the moment, the law is clear. It is common sense, but under this Bill common sense goes out of the window.

Robert Flello: If my understanding is correct, members of the general public who are not able to have such eminent and knowledgeable friends on their side at the time of a burglary would not know that they could not use disproportionate force, so where is the clarification that the Bill seeks to introduce?

Andrew Dismore: My hon. Friend answers his own question. There is no clarification; it makes things far worse.
	Before that round of interventions, I was construing the term "person" in clause 1(2), which introduces new subsection (1A). The next question I pose is: what if the householder—I will use the broad meaning of the word "householder"—attacks someone by mistake? What if it turns out that the person they attack is not a burglar but a neighbour returning a lawnmower late at night, or a genuine gasman—not the artificer who has come to nick the money out of the teapot—who has come to read the meter?
	At the moment, if there is a mistake of fact, the reasonableness, or otherwise, of the mistake is a factor to be taken into account when determining whether the mistake was or may have been a genuine one. Thus, where a defendant was neither under threat nor actual attack but honestly believed that he was, the jury should be directed to consider whether the degree of force used was commensurate with the degree of risk that he believed to be created by the attack. What that means, if that basic principle of law will still apply, is that the gasman or the neighbour returning a lawnmower could be half beaten to death, but it would be all right for the assailant homeowner to say, "I made a big mistake, I'm very sorry and mortified, but that's life and I'm not being prosecuted." That would not be much consolation to the gasman or neighbour lying in a pool of blood. The Bill effectively encourages that level of violence. At the moment, if a mistake like that were made, the gasman or neighbour might get a punch in the mouth or be pushed over, receiving lesser injuries than might be likely if the Bill were enacted when the householder could use excessive force.

Robert Flello: We are looking at a vigilante Bill in all but name.

Andrew Dismore: My hon. Friend is right. Some of the language used, the circumstances described and the arguments being prayed in aid of the Bill by the Opposition parties have made that pretty clear. We are looking at the introduction of vigilante law, and law, at that, that is unclear and uncertain and would result in people who believe they are doing the right thing facing prosecution when, at present, they would not.

Sadiq Khan: My hon. Friend gave the example of a householder making an innocent mistake in the absence of mens rea. Is not it another problem that the Bill will lack the risk jurisprudence and case law we already have under section 3 of the Criminal Law Act 1967? The new subsection (1A)(b), which talks about what
	"ought to have been apparent"
	to the householder, compounds that error? Before, a subjective element was required, and that is missing here.

Andrew Dismore: I am not sure I entirely agree. If section 3 of the 1967 Act were to be amended, the new subsection (1A)(b) would, as I read, it provide an objective rather than a subjective test, in that it suggests something "ought" to have been apparent to the person using force, rather than relying on what that person believed.

Chris Bryant: I think I agree with my hon. Friend the Member for Hendon (Mr. Dismore) rather than my hon. Friend the Member for Tooting (Mr. Khan) on that point. However, the point surely is that in using the terms "proportionate" or "disproportionate", we do not ascertain what the response would be proportionate or disproportionate to. Is it proportionate or disproportionate to the amount of fear felt by an individual, or to the actual force used, or to the force that might possibly have been used? Surely that is a problem in the Bill.

Andrew Dismore: My hon. Friend is correct, and I hope to explore that issue later. The problem is that there is no common law interpretation of those terms, and nor is there any guidance in the Bill. Nor, for that matter, was there any guidance in the Criminal Justice Act 2003, which introduced the test into civil law, and which has been prayed in aid by the Opposition as they have made their proposals today.

Jim Dowd: To pursue the issue raised by my hon. Friend the Member for Rhondda (Chris Bryant), if there is no legal definition of "disproportionate", is there any legal definition of "grossly"? If we have no definition of "disproportionate", what is "grossly disproportionate"?

Andrew Dismore: My hon. Friend is absolutely right to raise that. I was construing the phrase "grossly disproportionate" jointly, but one can consider it disjunctively as well, which creates two questions. As far as I am aware, there is no guidance in the common law, and there is certainly none in the Bill or any other statute, on the definition of either term. Of course, it is bizarre to say that people should use disproportionate force, never mind grossly disproportionate force. The Bill would endorse people doing something disproportionate either to their fear or to the level of the attack they experienced, and that seems, as my hon. Friend the Member for Stoke-on-Trent, South said, to be a licence for vigilantism.

Sadiq Khan: Are there not additional problems with "grossly disproportionate"? The concept is completely alien to the European convention on jurisprudence, which refers to proportionality and disproportionality, not "grossly disproportionate". Secondly, there is the reference to the Criminal Justice Act 2003 in that context. "Grossly disproportionate" applies in the civil context, where the burden of proof is quite clearly different from that in criminal law.

Andrew Dismore: My hon. Friend makes a good point. I hope to explore the difference between civil and criminal law later in my remarks. An important issue has been raised by the Opposition when they say, "We are only aligning criminal law with civil law." In fact, they are not. Weird and strange anomalies are created. The differences between the criminal and civil law systems must be explained if we are to ensure that the House has all the facts and arguments before it before deciding whether to give the Bill a Second Reading.
	Clause 1 introduces new subsection (1A) to section 3 of the Criminal Law Act 1967 by referring to the definition of "person". There follows the issue of phraseology.

Jim Dowd: The proposed new subsection reads:
	"Where a person uses force".
	Will my hon. Friend enlighten us about what would happen if someone set a dog upon a supposed intruder? The dog would be using the force, but the person would have some control over the dog—or would they be held not to have that control?

Andrew Dismore: My hon. Friend raises an interesting series of questions by his intervention. In general terms, I think that the dog would be seen as a weapon, if it had been deliberately set on the burglar by the owner. There would then be the argument about whether the dog was, for example, a chihuahua, or a bull mastiff or a pitbull terrier. The answer might be different in those cases.
	The position becomes even more complicated. Let us suppose that the dog of its own volition decides to sink its teeth into the burglar's trousers, without it being set upon the burglar by the owner who uses the force. There is nothing in the Bill that amends any of the laws relating to dangerous dogs legislation, which was controversial before I became a Member of this place. The Animals Act 1971 applies to the issue of whether the dog was acting lawfully or unlawfully. My hon. Friend has raised some interesting questions, which go way beyond the Bill that is before us.

Nick Palmer: If no living creature is involved but the person has set an automatic defence, I think that my hon. Friend would agree that that is an indirect use of force by the person who set the mechanism in place. If that person had reason to fear serious assault—let us say by terrorists—but the mechanism went off to injure someone who had committed a quite harmless trespass, does my hon. Friend think that under the wording of the Bill it could be claimed that although the setting off of the mechanism was clearly grossly disproportionate, given that the intruder had been blown up, for example, it could not be held reasonably to be a parallel? The person would not have been there at the time. An automatic mechanism had been set for a real threat, although it had gone off for some minor occurrence.

Andrew Dismore: My hon. Friend makes an interesting point. The law in relation to setting a trap, as it stands, is clear. We should not do it. That is not to say that we cannot take steps physically to harden a property against intruders. Any physical hardening, in so far as it may cause injury, should be apparent. It should not be a trap. The law goes the other way, perhaps, in that it encourages people to have window locks, burglar alarms and so forth. A burglar alarm is a trap but there were the man-traps that we see in Victorian films, catching the poacher. Such traps clearly would be a trap and would be illegal. If I am wrong about that, what happens where the man-trap is in the grounds of a property rather than inside the building? We end up with a completely different set of circumstances.
	If the man-trap is in the grounds of the castle, it would be caught by the existing law of reasonable force and clearly would not be protected. If it is inside the building, I suspect that it would probably be protected because the response is a trap and it is not for the purposes of the Bill. An interesting question has been raised and it is one that may have to be explored in more detail in Committee, should the Bill go that far.

Robert Flello: My hon. Friend has raised some further thoughts in my mind. What if someone had set a device designed to give a mild electric shock to an intruder at a level where no harm would be expected but the intruder had a heart condition and the shock was sufficient to trigger a heart attack? Under the vigilante Bill as it stands such a system would not be disproportionate. What if something designed to stop an intruder accessing the roof was mounted on the outside of a building but fell into the grounds or the street? It would have gone from being something within a building to something outside a building. Where would that stand under the vigilante Bill?

Andrew Dismore: My hon. Friend makes an interesting point. Properties are often protected by barbed wire, razor wire or the new material called cactus, which is very effective. There is also the old-fashioned use of broken bottles stuck in concrete on top of a wall. Those are not traps because they are obvious. There may be civil remedies if someone is injured by them, but they are certainly not traps.

Roger Gale: They are illegal.

Andrew Dismore: The hon. Gentleman says that they are illegal. That may be the case, but the issue that we are starting to address is what we mean by "trespasser". I shall go on to consider that because it is important that I make some progress.

Roger Gale: As a matter of interest, hon. Members were given counselling by security force personnel because of terrorist threats to Members. We were warned that we had to be very careful about how we protected our homes. I fear that the concept that your home is your castle is not true.

Andrew Dismore: I am grateful to the hon. Gentleman. In my property, I have employed security measures such as window locks, deadlocks and burglar alarms that are unlikely to harm anyone. That is the best way to go, as I hope to explain later.

Sadiq Khan: The intervention of the hon. Member for North Thanet (Mr. Gale) is useful, because it appears that the current position is that the use of barbed wire or glass is proportionate if a lad kicks his ball over a wall and is injured. If that is the case, will my hon. Friend comment on what might happen to youngsters going over a wall to get their ball back if a householder was allowed to use disproportionate and excessive means to protect his or her property?

Andrew Dismore: The child might be injured but the householder would not be protected by the Bill because the ball would presumably be in the yard or garden. The householder might not draw the distinction that a QC would between the house itself and its immediate surroundings. People might think that they are protected by the Bill in using disproportionate force in dealing with a lad trespassing while chasing a ball, but find themselves in the dock because the Bill would not protect them. That is the sort of problem that arises when there is a duplicity of standards in respect of the law of self-defence.
	Let us consider what we mean by "entered as a trespasser", which is the phrase used in the third line of what would become new subsection (1A) of the Criminal Law Act 1967. I happen to have with me a copy of the eighth edition of Professor Sir John Smith's "Law of Theft", which, if we follow its advice, produces some interesting anomalies in respect of the Bill.
	Let us first consider the definition of "enters". The common law rule was that the insertion of any part of the body, however small, was a sufficient entry. If a burglar pushed through a window pane and the forepart of his finger was observed to be inside the building, that was enough. The Theft Act gives no express guidance and it seems to have been assumed in Parliament that the common law rules apply. Under common law, if an instrument is inserted into the building for the purpose of committing the offence, it counts as an entry, even though no part of the body was introduced into the building. Someone who just pokes a finger through the window could be met by disproportionate force when the mad householder with an axe comes along and chops it off. That is disproportionate for sure, but is it excessive? We do not know, but I believe that the House does not really expect or wish to see that happening.
	We know that the common law still applies, because Professor Smith, one of this country's leading experts in criminal law, explains it in his book. He goes through a whole series of anomalies that can occur, but he goes on to say at the end of the section that deals with "peculiar effects" that the "best course" is probably to assume "the continued existence" of the "common law rules". He provides some very strange examples. One of the most interesting is the case of transvestites who hooked dresses worth £600 through the letter boxes of shops and pleaded guilty to burglary. Well, if that is committing a burglary and if the essence of burglary is trespass, I dread to think what might have happened if the householder had got hold of them while they were hooking things through his letter box.
	Now that we have looked into the question of entering, we have to understand exactly what is meant by trespassing. A trespasser is a legal concept that is rooted in the civil law rather than the criminal law. The basic rule in civil law is that entry with the consent of the occupier cannot be trespass, but obviously the opposite is the case. "Mistake" by the person who enters the property is no defence if, for example, the person accused of being a trespasser and therefore at risk under the Bill were to enter the house next door, mistaking it for his own, on a very dark night. That would still be regarded as an intentional entry in trespass law, even if the person doing the entering had made an honest and reasonable mistake. To revert to my earlier example of the neighbour returning the lawnmower, one wonders whether the full force of excessive force is appropriate in those circumstances.
	I can provide an even better example than that. Let us suppose that the person allegedly committing the trespass were separated from his wife and he wrongly supposed that he had the right to enter the matrimonial home of which he was still technically the owner-occupier as he was still paying towards the cost of the home. He thought that he had the right to go in, even though he may not have had that right in law, and enters with the intent of removing some of the belongings. In fact, even in law, he may be a trespasser, but he is not actually a burglar because he can rely on some of the defences that apply in the law of trespass. My concern in that case is that he is potentially a trespasser for the purposes of the Bill, but he is not a burglar for the purposes of the Theft Act 1968. He could be beaten up by whoever happens to be inside the property—by his wife's new partner, for example—and if he were subjected to excessive force, it would be covered by the Bill even though in law he was not really a burglar at all.

Sadiq Khan: Is there not a problem with the words "entered as a trespasser"? Earlier, an Opposition Member, who is no longer in his place, referred to an example, in which "but for the law" he would have been a hero for retaliating against someone who came into his shop to commit an act of theft. As my hon. Friend knows, the reality is that if someone commits a criminal act on a property, the licence is revoked and he then becomes a trespasser. If someone enters a shop as an innocent purchaser of an item without the intention of breaking the law, but subsequently decides to commit a criminal act thereby becoming a trespasser, he or she did not enter the shop or property as a trespasser, which is the threshold required for the provisions to apply. Is not that the problem?

Andrew Dismore: My hon. Friend makes a very interesting point, which relates to the Theft Act. If someone decides to commit a theft at a particular stage, they become a trespasser from the moment they entered the building and could theoretically face the charge of burglary; in practice, they are usually charged with theft. Technically, if they were to jump over the counter and raid the till, I suspect that it would be classed as burglary.

Chris Bryant: Let us consider the example given earlier of an estranged husband returning to the matrimonial home, which he still half owns. He might not be entering as a trespasser and may have no intention of committing a burglary of any kind. None the less, in an altercation he might end up offering violence against his wife, and at that point it might be necessary for her to offer violence in return. Of course, this Bill would not protect her in any sense.

Andrew Dismore: To be fair, I am not sure that that is accurate. In that situation, the husband would probably be committing the offence of burglary anyway, because burglary is not just thieving: rape and grievous bodily harm, for example, can constitute burglary. People often think that burglary is just stealing; it is not. It can include other offences linked to breaking into a property. The problem is that the Bill refers not to burglary but simply to people trespassing on buildings. The definitions of trespass in civil law and in criminal law are different, as are the definitions of the motive of the person entering the building. The situation is very confusing indeed, and part of the problem is that the Bill is unclear on the circumstances to which it would apply.
	As has been demonstrated in a number of different examples given today, under the Bill, the person defending themselves could be completely unclear as to which test applies: the reasonable force test or the excessive, disproportionate force test. They would not know where they stood, and the creation of such confusion would put them in a very difficult position. There is a very real risk that they might naturally assume that they could use disproportionate force in circumstances where they in fact could not. The consequence could be entirely the opposite of that intended. People could end up appearing in the dock to defend themselves who currently would not need to, because as it stands they would be using reasonable, rather than disproportionate, force. If someone used the latter in circumstances where they were entitled to use only the former, they would rightly be charged with a criminal offence. That could happen under the Bill, simply because it has led them up the garden path.

Robert Flello: Under this vigilante Bill, burglars could decide to stop committing burglaries and start mugging instead, because the prize is the same but the chances of being beaten up are reduced. In other words, it could push burglars out into the parks to mug people. Moreover, under this very woolly vigilante Bill, somebody threatened with being mugged in the park might rush to the nearest house and hammer on the door to get in, only for the person behind the door to think, "Somebody is trespassing on my premises; I can now use disproportionate force against them." What are my hon. Friend's thoughts on that?

Andrew Dismore: My hon. Friend offers yet another example of how this Bill creates many anomalies. Creating two different laws of self-defence for two different sets of circumstances is dangerous and would lead to serious problems.

Sadiq Khan: At the beginning of his excellent speech, my hon. Friend said that the Bill's title, which refers to the "Protection of Property", gave the game away. Will he confirm, in the light of the intervention from my hon. Friend the Member for Stoke-on-Trent, South (Mr. Flello), that under this Bill those who live in gated developments or castles, and who drive everywhere, would enjoy better protection than those of us who walk or commute, and who live in communities? Nor, as my hon. Friend the Member for Rhondda (Chris Bryant) said, would the Bill protect those living in rural areas.

Andrew Dismore: My hon. Friend is right: the Bill is disproportionate and unfair.
	In an intervention, my hon. Friend the Member for Stoke-on-Trent, South mentioned the displacement of crime from burglary to street robbery. Well, that may happen anyway if we are able to bear down on the incidence of burglary; indeed, there has been a rise in street crime as a consequence of the fact that burglary has become a more difficult crime to commit. The problem with the Bill is that it may drive people further into that type of criminal behaviour.
	I mentioned previously the problem of displacement from properties where the householder may be thought to have weapons to defend himself to the home of a little old lady who could not defend herself. The Bill would inevitably lead to such displacement, and my hon. Friend is right to say that there will also be displacement from burglary to street robbery, perhaps as an alternative way of funding a drug habit. Obviously, we have to deal with street crime, too, but the Bill does not provide the same protection for victims of street robbery as it does for the lord in his castle.

Nick Palmer: We all admire my hon. Friend's ability to retain the thread of his remarks despite our interventions. I want to take him back to an intervention that he did not fully deal with: my hon. Friend the Member for Tooting (Mr. Khan) pointed out that under the Bill the situation would be different for someone who entered as a trespasser and for an opportunist who went into a shop and then decided to commit a burglary. A householder would not necessarily know which of those two things had occurred, so the exemption in subsection (1A)(b)—
	"this was or ought to have been apparent to the person"—
	relates only to the degree of force. If a householder came across someone who had appeared in the building unlawfully but did not know whether they originally intended to trespass, the householder would not know whether they could use disproportionate force.

Andrew Dismore: That is one of the problems. My hon. Friend switched from a shop owner to a householder halfway through his analogy, but I think it would be interesting if we stayed with the shop owner. If somebody enters a shop and tries to steal goods or raid the till, they retrospectively become a trespasser for the purposes of the Theft Act, so technically would fall to be dealt with under the Bill. The problem is that the shop owner may not know that. I suspect that most shop owners do not know the law of trespass well enough to draw that distinction. Yet again, we would be in the difficult position where different rules applied in different circumstances, with a complete lack of clarity for the victim about the extent to which they are entitled to defend themselves—whether the high test in the Bill or the common-sense test in the existing law of self-defence.
	A further problem with trespass relates to invitees—for example, friends who visit the house, other tenants in a house of multiple occupation, squatters, a neighbour borrowing a lawnmower or a neighbour in a dispute. They might not enter a particular place as trespassers but they could all become trespassers for the reasons that I have outlined. That creates a serious situation, because most people would not know where the line was drawn, or that the status of someone who had entered the building could change. The arguments that we have been having during the debate about trespass show that the law of trespass is not as fully understood as it should be even by those who might have read "Archbold's Criminal Pleadings" or "Clerk and Lindsell on Torts"—

Robert Flello: Bedtime reading.

Andrew Dismore: Only if one is an insomniac. If one wants to know the law, one would have to read those books, but I suspect that most shop owners would not have them on their shelves.

Jim Dowd: Unless they owned a bookshop.

Andrew Dismore: Even most bookshops would not have those books unless they were law bookshops, and there are not many of those about. Of course, whether the shop staff had actually read the books is another question altogether.
	The law of trespass gives rise to serious problems, especially in cases where people gain entry by deception. We have all heard about burglary by artifice—the dodgy gas or electricity man whose object is not to read the meter but to rob the teapot. In those circumstances, even if the dodgy gas man was invited in because the householder did not think that he was a trespasser, in law he would be. To pick up the second point made by my hon. Friend the Member for Broxtowe when he switched his analogy, the householder would, under the Bill, be entitled to use disproportionate force to defend themselves but would probably be unaware of that fact. The Bill would create misapprehension about what people could do.

Chris Bryant: My hon. Friend might recall that the right hon. Member for West Dorset (Mr. Letwin) invited a gentleman into his home at 2 o'clock one morning because the man knocked on the door and said that he needed to use the toilet. Even such an esteemed figure as the right hon. Gentleman might not have fully understood the nature of trespass. If the Bill came into law, he thus might not fully understand the precise degree of force that he could use.

Andrew Dismore: My hon. Friend is right. If we are talking about the countryside, there is an interesting point that people who have limited authority to do one thing and may thus enter a place legally can become trespassers if they do something outside the extent of that authority. An example cited under the Game Act 1831 is of someone who had permission to go on to land to hunt for rabbits, but then started hunting hares. It might be splitting hairs to raise the case, but such evidence of trespass under the Game Act 1831 would presumably be evidence of trespass under the Bill if the animals in question were inside a building—we would presumably be considering battery-farmed rabbits or hares in such circumstances.

Sadiq Khan: My hon. Friend talks about the householder being unclear about whether someone is a trespasser. One of the arguments for the Bill that is being pressed by members of Her Majesty's official Opposition is the fact that it would reduce the number of burglaries committed, because possible burglars would be scared off and deterred by the draconian powers open to a householder. However, would not a possible burglar also be confused about the position? Any chance of the Bill deterring burglars would be limited by their confusion about the powers of the householder.

Andrew Dismore: I am not entirely sure that I agree with my hon. Friend's argument. The Opposition say that a burglar would assume the worst in such circumstances. If that is the case, it might be an argument in support of the Bill. However, if my hon. Friend is right—in this context I suspect that he is—it would not have that deterrent effect at all, because burglars would assume, as criminals always do, that they would not get caught and that the lesser rules would apply. They are not very intelligent people, which explains why they undertake such business, although I suppose that we can think of the famous jewel thieves whom we sometimes see in fiction.

Chris Bryant: Is not the other problem with the concept of trespass the fact that the tort of trespass originally related to land—and still primarily does in law—rather than to buildings? I know that the concept of trespass in a building comes from the Theft Act 1968, but the situation is none the less confusing.

Andrew Dismore: My hon. Friend makes an interesting point. If ordinary people were to read the Bill, they would think that "trespass" applied to anywhere on their property. They might not read the small print that refers to a
	"building or part of building".
	When we examine the definition of a building, as I hope that we eventually will, the situation gets even more difficult and confusing.
	Let us continue to examine proposed new subsection (1A) to section 3 of the Criminal Law Act 1967 by considering what is meant by the
	"defence of persons or property".
	One might think that that is a relatively uncontroversial aspect of the Bill that raises no significant problems, but that is not the case. Property does not have to be either lawfully owned or legal property in its own right.
	Let us suppose that the legal owner of a TV or video discovered that it had been stolen by another person in their tower block. If the owner decided to go and repatriate it, they might think that they were entitled to use disproportionate force to recover it, because they would be acting inside a building to prevent crime. However, the burglar in his flat could also use disproportionate force to defend the stolen property from its lawful owner and fight back, so the situation would ratchet up. Each person is legally entitled to use disproportionate force against the other. That is surely not the Bill's intention, but it is the inevitable and logical consequence of the way in which it is drafted. The lawful owner of the property is preventing crime while operating inside a building, and the burglar, who is also inside the building, is defending property, even though it is not his. According to the Bill, each can use disproportionate force against the other. Who knows where it will end, except with two corpses on the carpet? Surely, that is not the Bill's intention.

Nick Palmer: Most of us are not legal experts, unlike my hon. Friend. Even so, we have been able to identify many ambiguities and problems in the Bill. In the current state of affairs, the position is intuitively clear when a case comes to court. Would it therefore not be a retrograde step to create a haze of legal ambiguities? The ensuing lawyers festival would make today's debate look like peanuts.

Andrew Dismore: My hon. Friend is right. I do not practise as a lawyer any more, but the only people to gain from the Bill belong to the legal profession. I expect lawyers to make a great deal of money from the obtuse arguments whose surface we have only scratched today.
	I have dealt with the position when property is owned illegally, but what is the position when property cannot be owned legally in the first place? For example, what if there is cache of drugs in a crack house? A drugs gang may be about to sell drugs to an addict who has entered the property legally at the invitation of his dealer for a fix. The junkie finds that he does not have enough money, and tries to grab the drugs. The drugs gang could use disproportionate force against the junkie to prevent him from seizing the illegal drugs that should not be in its possession in the first place. The junkie could argue that he was trying to prevent crime by seizing drugs from the dealers. Theoretically, both parties could deploy the argument that they were entitled to use disproportionate force.
	Similarly, a drugs gang may wish to use disproportionate force against another gang whose members are trying to collect payment or steal the drugs. That is not an infrequent occurrence, as we know from the leaflet produced by the CPS and ACPO, which says that burglaries are often used to conceal the fact that nefarious activities such as drug dealing are under way. The law is bad enough without introducing legalised gang warfare between tooled-up drugs gangs in a shoot-out. Each gang could use their Uzis to mow the other down—the Opposition might think there is nothing wrong with that—with disproportionate force. That is perfectly legal for both gangs under the Bill, because one is entitled to shoot someone if one faces the threat of force. One drugs gang is trying to prevent crime, and the other is trying to commit it. However, both are trying to defend their property, and the net result is legalised gang warfare. Surely, that is not what we are attempting to achieve in the Bill.

Chris Bryant: To be fair to the Opposition, those gangs would not be able to go out and do that. They would only be able to do so in a building.

Sadiq Khan: Or part of a building.

Andrew Dismore: My hon. Friend the Member for Tooting is right. What about a shoot-out in the staircase in the common area of a tower block—a not uncommon location for drug dealing or, for that matter, a crack house? Machine Gun Kelly could stand outside the lift shaft to mow his opponent down. It would be perfectly legal for each of them to use disproportionate force against the other in a fight over a drugs cache or money, which is surely an unintentional consequence of the Bill.

Robert Flello: It is a little unfair to accuse the Opposition of supporting such a thing, given that there are unfortunately only two Opposition Members present.

Andrew Dismore: My hon. Friend makes a caustic comment about the Opposition's interest in their own Bill. I am pleased to see so many of my hon. Friends present to make their views known through interventions or, if there is time, through their own speeches. I regret to say that there is still an awful lot more to say about the Bill. We must give it proper scrutiny. The right hon. Member for Bromley and Chislehurst, were he in his place, would expect nothing less of me.

Sadiq Khan: Can my hon. Friend reassure me that he will talk about the Bill's compatibility with the European convention on human rights?

Andrew Dismore: Of course I intend to do that. It is a little way down my list of subjects, but I hope there will be time to get to the Human Rights Act and the implications of the convention.
	Let us consider the definition of "building", a subject that has already tested the House today, and rightly so, as this is one of the particularly weak points of the Bill. Clause 1(2) introduces in section 3 of the Criminal Law Act 1967 a new subsection 1A referring to anybody
	"who is in any building or part of a building".
	"Building" is defined in new section 3(1C) as having
	"the same meaning as in section 9 of the Theft Act 1968 (c. 60) (burglary)."
	So we must refer to the Theft Act. Unlike the Bill introduced by the hon. Member for Newark, this Bill deals not just with domestic premises, but with all buildings, with no distinction between domestic and commercial premises. On burglary, section 9(1)(a) of the Theft Act 1968 states:
	"A person is guilty of burglary if—
	(a)
	he enters any building or part of a building as a trespasser".
	We have considered the meaning of "trespasser", and I should say that the penalties for invading a domestic property are rather higher—a sentence of up to 14 years—than for any other property, for which the sentence is 10 years. The definition of "building" is cross-referred in subsection (3), which states:
	"References in subsections (1) and (2)"—
	about which we need not worry at the moment, and references to a building that is a dwelling—
	"shall apply also to an inhabited vehicle or vessel, and shall apply to any such vehicle or vessel at times when the person having a habitation in it is not there as well as at times when he is."
	The problem is that that does not define what a building is, so we have to go to the case law to find out how a building is defined. I must resort to my old bible, "Archbold: Criminal Pleading". The 2005 definition states:
	"Any building or part of a building may be the subject of a burglary."
	That includes houseboats and caravans which are regularly inhabited, even if they are empty at times. It goes on to say:
	"The word 'building', being an ordinary word of the English language, and the context not being such as to show that the word is used other than in an unusual sense, its meaning is a question of fact not law."
	That is about all that "Archbold", the bible of criminal law, has to say about it, except that, I am pleased to say, the editor of "Archbold" helpfully cross-refers us to the excellent book by emeritus Professor Sir John Smith, "The Law of Theft", 8th edition, in which a little more guidance is given.

Jim Dowd: It must be a bestseller.

Andrew Dismore: Indeed. It is even available in paperback.

Jim Dowd: Are there plans to turn it into a musical?

Andrew Dismore: I think not, but the book provides helpful guidance as to what a building is in law.
	Professor Smith says:
	"Many things which have been held to be buildings for other purposes will not be buildings for the purposes of the Theft Act—for example, a garden wall, a railway embankment or a tunnel under the road."
	That is, perhaps, self-evident, unless one is, for example, a railway worker or a roadman.

Robert Flello: A number of my constituents enjoy the happy hobby of caravanning, and my hon. Friend has mentioned caravans. At the moment, if a caravan sits in the front garden of a property in my constituency and somebody tries to take or burgle it, the householders can rightly and legitimately use reasonable force to stop them. What would the situation be under this proposed vigilante Bill? Would a caravan count as a building? What if the householder uses their caravan only once a year? Where would the Bill leave my constituents?

Andrew Dismore: My hon. Friend has raised a very interesting question. I think that a caravan would probably count as a building, whether or not people live in it and even if it is just parked on a front drive. A difficulty would arise if one of his constituents owned a Dormobile, which complicates the situation, and I hope to refer to the difficulties created by Dormobiles very shortly, Mr. Deputy Speaker.

Sadiq Khan: I am grateful to my hon. Friend for having done the reading, which has saved me from having to do it. What about the position of those of my constituents who enjoy going camping in a tent? Would a tent be classified as a building? And what about those of my constituents who have the good fortune, like many of the constituents of official Opposition Members, to own large properties that contain a big wall, a garden or piece of land and a bricks and mortar building? Would such householders receive the protection of the Bill on the piece of land between the wall and the bricks and mortar building?

Andrew Dismore: On the second point, such householders would not be protected by the Bill, because the piece of land is not inside a building. My hon. Friend has presaged the eminent Professor Smith, who says:
	"To be a building, the structure must have some degree of permanence. A substantial portable structure may be a building but probably"—
	that is as far as he goes—
	"not a tent even though it is someone's home."
	The best advice that I can give my hon. Friend is that a tent would probably not be covered by the Bill. That highlights our problem with the Bill, because "probably" is not good enough when one is discussing matters of life and death, which one is when one considers the Bill.

Chris Bryant: My hon. Friend may recall from the Sexual Offences Act 2003 that a tent is defined in law as a structure, not a building.

Andrew Dismore: That is very interesting, because the eminent Professor states that
	"A substantial portable structure may be a building but probably not a tent".
	Perhaps my hon. Friend should write to Professor Smith to put him right. However, his point arises in a context other than the Theft Act 1968, with which we are concerned today. I am sure that Professor Smith would be very interested to know about the comparison with the Sexual Offences Act 2003, which may give him additional guidance on how to construe the 1968 Act and ultimately this Bill, were it to become law.

Jim Dowd: If I have understood my hon. Friend's definition of a building, which concerns the building's degree of permanence, I imagine that a cave would not be a building, but what about a tunnel that has been built and is a permanent structure? I mention that point because the Bill refers to the prevention of crime in general rather than just crime against persons or property. Criminal action on the permanent way is a great headache for the railway authorities. Would the railway authorities have powers under the Bill?

Andrew Dismore: My hon. Friend has raised two issues. First, what about troglodytes? Troglodytes are people who live in caves. Many people live in caves. Indeed, when I was on holiday in Spain, I visited several towns in which the houses were made out of caves. Are such caves buildings? My hon. Friend has posed a very good question. I presume that if they had a built-on front wall built and possessions inside they would be a building, whereas a tunnel would not. However, there may be a building inside a tunnel—for example, a sub-surface underground station. That raises interesting questions. If the British Transport police wanted to apprehend an offender who was in the ticket hall and then leaped over the barriers and ran down the tunnel, what would be the powers of the constables chasing him? Would those powers switch between the moment they left the ticket hall and the moment they entered the tunnel? Under the Bill, they probably would.

Chris Bryant: I am not too worried about the troglodytes, but I am still worried about those who inhabit vehicles. The hon. Member for Vale of York (Miss McIntosh) referred to theft from a car. Very few cars would count as an inhabited vehicle. My hon. Friend drew a distinction between a Dormobile—the "dorm" element suggests that people sleep and perhaps live in it—and a caravan. Where would he place mobile homes, which for the most part are not mobile but stationary with no vehicular element?

Andrew Dismore: rose—

Mr. Deputy Speaker: I am not criticising the hon. Gentleman for straying too far away from the main contents of the Bill, but he spent some time defining trespass and is now defining buildings. Those definitions must apply elsewhere in law. I hope that he will use his speech particularly to address the Bill before us instead of defining terms from the law generally.

Andrew Dismore: I would hate to quibble with you, Mr. Deputy Speaker, but the problem is that the Bill defines
	"building or part of a building"
	by cross-reference to section 9 of the Theft Act 1968. I have been examining that Act's definition of a building because that is the definition that applies in the Bill. It is not my fault that the drafters made that cross-reference. I would far prefer that they had set out what they mean by "building" in the Bill. If we are to explore the Bill properly, I therefore have to consider how "building" is defined for the purposes of section 9 of the Theft Act. The work that I have been using as my bible is the seminal work on the law of theft.
	My hon. Friend the Member for Rhondda asked about vehicles. Cars certainly do not apply. Before I come to the issue of mobile homes, though, it is important to set out the benchmark definition of a building. That was given by a former Master of the Rolls, Lord Esher, in a case that took place quite a while ago. He says that a building in the ordinary sense is a block of brick or stonework covered in by a roof, and a structure of considerable size that is intended to be permanent or at least to endure for a considerable time. He says that a telephone kiosk is not a building, that the outbuildings of a house are buildings, and that a detached garage, tool shed or greenhouse may be a building. He identifies a difficulty on building sites in that a roof will be thought necessary for a structure to be a building but says that there is no obvious answer to borderline cases. He says that one lodger may commit burglary by entering another lodger's room, that a guest in a hotel may commit a burglary by entering the room of another guest and that on a ship somebody could commit a burglary by going into another cabin. A whole series of examples are brought into the Bill by the cross-reference from the Theft Act.

Robert Flello: This draft vigilante Bill gives me grave concern, because of the confusion that it would cause. Could my hon. Friend, with his vast experience of these matters, give me some guidance as to what would happen on a building site that had on-site security? If some of the buildings were partly completed and some were not, would the security guard be acting within the law under this vigilante Bill if he used disproportionate force when he caught someone trying to steal things from the site?

Andrew Dismore: I have an example that I was going to use later in my speech, but it is relevant to my hon. Friend's question. I would pity the security guard in those circumstances. Let us suppose that, on a housing development, some of the houses had been finished, some had been constructed as far as the second floor and had a roof, some had only the first floor and no roof, and some were still just a wishful thought in the developer's eye, consisting only of footings or perhaps just open land.
	The problem that the security guard would face as he chased the burglar from one part of the site to another would be that he would be able to use disproportionate force when he was in a finished house, but he may or may not be able to do so when he entered a half-finished house, depending on how much of it had been built, and when he chased the burglar over the open land heading for the gate, he would be back under the old rule of reasonable force. Frankly, nothing could better illustrate the anomalies that the Bill would create as a result of defining the word "building" insufficiently tightly. Instead, it sloppily cross-refers us to the Theft Act 1968 because its drafters could not be bothered to apply their minds to what a building should be, for the detailed and specific purposes of the proposals. The net consequence is that we should have all these amazing anomalies.

Sadiq Khan: I am really troubled by that last example. My mind is drawn to our police officers, who are governed by their disciplinary codes, as well as by the civil law. Having read about these matters, what guidance would my hon. Friend give to a police officer giving chase, for example, to a teenage trespasser on a building site or on the railway—my hon. Friend the Member for Lewisham, West (Jim Dowd) mentioned tunnels earlier. How would the police officer know how not to fall foul of the Bill's provisions, by contrast with the provisions of the disciplinary code or the civil law provisions that might apply if they were sued, if someone were assaulted as a result of the way in which the police officer behaved?

Andrew Dismore: My hon. Friend raises an important point. I would hope that the police officer would exercise their common sense. A police officer is entitled to use reasonable force in apprehending a criminal, as is any citizen attempting to effect a citizen's arrest under the law as it stands. Police officers are trained in the criminal law, and they know when they may and may not use disproportionate force, but that would not be the case under the Bill, because of all the anomalies that it contains. I suspect that a police officer would have more sense than to use disproportionate force. I have rather greater respect for the police service than do the Conservatives, given their suggestion that police officers might wish to use disproportionate force beyond that necessary to detain a suspect.

Robert Flello: If a police officer giving pursuit to a drug dealer, for example, were in plain clothes and went across the building site that we talked about earlier, he would need not only to think about apprehending the criminal but to be cognisant of the fact that the security guard on the premises could use disproportionate force against him, not realising that he was a police officer because he was in plain clothes. Would not the police officer therefore have to take into account the fact that he might encounter disproportionate force simply because of the area in which he was pursuing the criminal?

Andrew Dismore: My hon. Friend's example is not at all fanciful. I think that it was the case of Kenneth Nye—

Jim Dowd: Kenneth Noye.

Andrew Dismore: I am grateful to my hon. Friend for his correction. Kenneth Noye was a well known member of the organised crime fraternity. He killed a plain clothes police officer who was staking out his property, because he thought he was a trespasser. Noye escaped conviction, even under the existing law of reasonable force. What would be the position were the new proposals in the Bill to apply? Plain clothes police officers could be subject to disproportionate force all over the place, both in the circumstances that we have heard described and in many others that I am sure that everyone in the House can imagine.

Sadiq Khan: An additional point is the criticism that a police officer would face if he or she used excessive or disproportionate force but not grossly disproportionate force. My hon. Friend and I, and our hon. Friends who work with the police, are aware that that would lead to criticism of the police when they were not falling foul of the Bill.

Andrew Dismore: My hon. Friend is right. All that one can say to police officers in those circumstances is that they should use their common sense, and use the reasonable force that they consider necessary to apprehend the offender. Ultimately, I suspect that that is the advice that we would all have to give to householders, or anybody else, even if the Bill were passed. To do anything else would still lead to the grey areas mentioned by my hon. Friend the Member for Broxtowe.

Nick Palmer: Does my hon. Friend agree that we would end up back where we started if we gave householders the advice that the law is not completely clear and that they must rely on the common sense of the jury and behave reasonably, which makes the task of the jury that much harder? Does not he agree that there will be situations in which the use of force to make an arrest is an ongoing process? The police officer might have to hit the suspect several times to subdue him. If the first blow was in a building, and the second blow was not, the question arises as to whether the first blow has become disproportionate.

Andrew Dismore: My hon. Friend raises an interesting set of circumstances, but the force was probably not even reasonable if it did not lay out the offender.
	On the definition of "building" as it applies to the Theft Act 1968, cross-referred to the Bill, a number of interventions asked about the position of mobile homes, which is an interesting way of summing up the anomalies in that regard. I mentioned dormobiles and motorised caravans, which are used for the ordinary purpose of a motor car during most of the year but are occasionally lived in, usually when the owner is on holiday. While the vehicle is being lived in, it is undoubtedly an inhabited vehicle, but when it is being used for the purposes of a car, it is not. The exact moment at which it becomes an inhabited vehicle might be difficult to ascertain. Is it when the family has loaded their possessions before going on holiday, when they take to the road, or when they park up at the seaside? When they use the vehicle as a car when on holiday, is it covered? A whole series of anomalies are created in relation to mobile homes.
	The Bill is not good enough in this respect. It must be much more specific and clear in its definition of a building. We heard earlier about the Englishman's home being his castle. What if it is a ruined castle? Is that a building? What if it is ruined castle now being restored? At what stage does it become a building? Perhaps it is a house; perhaps it is not. The problem is that the Englishman's home might be his castle, but it might not be his building for the purposes of defending it under the Bill.
	What about the position of trains? We still have sleeper trains. If people break into one cabin from another, the chances are that it would be covered by the Bill. Were the great train robbery to occur now, however, the train driver and the post office workers who were victims would not be covered by the Bill, because the mail van, and the driver's cab, would not be considered parts of a building for this purpose. I suspect that the cabins might be.
	What about a prisoner who invades the cell of another prisoner in jail? The prisoner, who is the "owner" of the cell, might wish to use disproportionate force to defend his property from the prisoner invading his cell, and the next thing is that we have a prison riot on our hands. That is encouraged by the terms of the Bill.
	As a result of the different tests of self-defence in different circumstances, the anomalies are legion. The definition of a building should have been drawn a lot tighter, rather than trusting to luck, sticking a finger in the air, testing the wind and referring to the Theft Act.
	We have had a lot of discussion today about the definition of grossly disproportionate, which is the meat of the Bill. Clause 1 would insert new subsection (1A)(a) into the Criminal Law Act 1967 and introduce the phrase,
	"the degree of force used was grossly disproportionate".
	If the defence is that the force was disproportionate but not grossly disproportionate, the prosecution has to prove that the force was not just disproportionate but grossly disproportionate.

Jim Dowd: We briefly touched on the matter a few minutes ago, but I find deeply troubling the use of the term "grossly". Where does it sit in the gradation of disproportionality? Is it worse than severely, markedly, significantly or extravagantly? How is a jury, for example, to distinguish between mere disproportionality, slight disproportionality, severe disproportionality and gross disproportionality?

Andrew Dismore: My hon. Friend raises an interesting point. The Joint Committee on Human Rights report on the Bill introduced by the hon. Member for Newark, which contained exactly the same language, said that judges could have a problem interpreting it. If the judges have a problem interpreting it, how can the ordinary householder in the street, never mind my hon. Friend, not have problems interpreting it?
	The problem is that neither disproportionate nor grossly disproportionate are defined in the law anywhere. There is no case law on it—civil or criminal. There have been no cases under section 329 of the Criminal Justice Act 2003, which introduced the term into civil law. There is no guidance in the law.

Chris Bryant: I do not know whether my hon. Friend is aware that there are in fact two places in the law where the term grossly disproportionate is used. The other place is schedule 3, paragraph 4 of the Opencast Coal Act 1958, which refers to the estimated cost of the work being
	"grossly disproportionate to any prospective increase attributable".
	Does he accept that the concept of the proportionality is much easier to use when one is attributing financial or some other value, rather than when one is talking about the action of an individual?

Andrew Dismore: My hon. Friend makes an interesting point. We know that the Bill is about defending property. I will bear in mind your constraints earlier, Mr. Deputy Speaker, and not stray down the highways and byways of other Acts and measures that the House has passed, although those may be the only guidance. It will be interesting to know, if I may say in parenthesis, whether that terminology has ever been interpreted in the courts or whether it simply appears in the statute. If that is so, it will not provide us with any more guidance than we have to start with.

Robert Flello: Does my hon. Friend envisage a situation where the Association of Chief Police Officers will have to distribute large amounts of leaflets explaining what proportionality, disproportionality and grossly disproportionate mean? Will that not be a tremendous waste of money?

Andrew Dismore: I envisage ACPO having to distribute tomes the size of "Archbold", rather than a leaflet, to explain to people what the new law will be. I have had to trawl through "Archbold" to try to find some definitions. Those will have to be incorporated in the leaflet. My hon. Friend is right: it is important that people are made aware of what the law is. However, I suspect that it would need to be rather bigger than a leaflet. It would be at the very least a thick pamphlet or a tome along the lines of "Archbold" if it is to make clear what the law is, should the Bill go through.

Sadiq Khan: If my hon. Friend is suggesting that "Archbold" should be compulsive reading for all citizens, I second that idea. He referred to the fact that, once a defendant raises the issue of self-defence, the burden shifts to the prosecution to prove otherwise. What will the position be in the new context if the Bill, God forbid, is ever passed?

Andrew Dismore: The Bill is silent on that interesting point. In those circumstances, one can only assume that the burden would shift to the defendant from the prosecution, where it is at present. That would create even more confusion. I am surprised that the Bill does not make clear whether the burden will lie on the defence or the prosecution.

Chris Bryant: Does my hon. Friend agree with the journalist who wrote:
	"For unlike the current law, where the householder may have to explain why the action he took was reasonable, the person who would need to prove that the force used was 'grossly disproportionate' might well be dead."?
	Those are the words of Melanie Phillips in The Daily Mail on 6 December 2004, opposing the previous Bill.

Andrew Dismore: It is interesting to hear such an eminent journalist as Ms Phillips, writing for the newspapers she does and holding the position she normally holds, expressing that view. That shows the real unease felt throughout the country about the Bill's proposals.

Lynne Featherstone: Does the hon. Gentleman agree, information being key, that it would be useful that, rather than either the Bill or Archbold being distributed, a leaflet such as the one which already exists could be distributed to every householder?

Andrew Dismore: The hon. Lady raises an interesting point and an issue canvassed previously when the Bill of the hon. Member for Newark was debated. It is incumbent on the Government to make sure that there is a proper information programme so that people are made aware what the law is. It is also incumbent on them to produce a leaflet in other languages, too, as people from minority communities particularly fear the impact of burglary. For recent arrivals to our shores, the regime of law under which they previously lived may have been a little more anarchic than ours, and it might be important to remind them of exactly what they are or are not entitled to do. I hope that the Minister will be able, should she come to reply to the debate, to pick up that point and say whether the Government intend to distribute the leaflet in a way that makes it accessible to all our citizens, whatever their native tongue.

Robert Flello: Does my hon. Friend agree that rather than bringing in a vigilante Bill, a better way forward would be to encourage the Home Office and the Inland Revenue, for example, to work together so that small businesses receive just such a leaflet directly with their end-of-year packs?

Andrew Dismore: My hon. Friend makes an important point. Although the leaflet is targeted at householders, the same provisions apply to business people, whether they be shop owners or work in an office. The Home Office might well imagine that it would be helpful to ensure that shop owners, about whose fears of people breaking into their shops we have heard much, benefit from a leaflet that would not require greatly to be changed from the existing leaflet, which sets out the position very well. It might require just a change to the title, and shop owners would benefit from it. I hope that the Minister will pick up on that if there is time for her to reply to the debate.

Sadiq Khan: I urge caution. My hon. Friend has explained his excellent practice of informing his constituents about their rights, but I urge caution because we must put matters in context. Fewer than 1 per cent. of burglaries are aggravated. Burglaries are also at the lowest level for 20 years. My hon. Friend, as a hard-working constituency MP, will understand that the perception of crime often overtakes the reality, and I would not want us to be carried away and to end up creating more concern among some of our most vulnerable constituents.

Andrew Dismore: My hon. Friend echoes some of the points I made earlier in giving some statistics about the incidence and risk of burglary. The important thing is that the leaflet must reassure people, and can do so in two ways. First, it can reassure them that the prospects of their being the victims of burglary are relatively slight. Secondly, they could be given some information on what they could do to reduce the risk of burglary—for example, the installation of window locks or asking the local police service to make a crime prevention visit. It is important that people know where they stand on these difficult issues. An information leaflet would not be just about telling people what they could do if their home were invaded. It would tell them what they could do to stop their home being invaded in the first place, and to reassure them that the risk of that happening is relatively slight.

Sadiq Khan: Does my hon. Friend agree that it is grossly irresponsible of opportunist Opposition Members to refer to the one or two stark cases where householders have been prosecuted because of action that they took against intruders?

Andrew Dismore: My hon. Friend is absolutely right. If we examine some of the cases, we see a different picture emerging. As we have no definition of "grossly disproportionate", perhaps we should consider some of the cases that have come before the courts and test them against the existing definition and against the "grossly disproportionate" definition.
	The research paper from the Library helpfully sets out a number of examples. The Library has gone back almost 20 years in looking for these cases. Having done so, it has produced relatively few. The number of cases that we are dealing with, even under existing law, is relatively small. The first case concerns a Mr. Eric Butler in May 1987. He was charged with malicious wounding after he stabbed a mugger on the underground with a sword stick. That case was withdrawn—it was reasonable force.

Chris Bryant: More importantly, such a case would not be dealt with under the Bill because it was not in a building.

Andrew Dismore: My hon. Friend makes an interesting point. Going back to the discussion that I had earlier with my hon. Friend the Member for Lewisham, West (Jim Dowd), it could be argued whether it was or was not a building, depending on whereabouts on the underground it took place.
	The second example is the case of Mr. Carrera. In May 1991, he was charged with murder after he was attacked with a knife by a drunken drug mugger. He turned the weapon on his assailant. He was acquitted under the present law of reasonable force.

Sadiq Khan: Would my hon. Friend agree that even if the Bill were ever enacted, Mr. Carrera would still face the prospect of investigation and potentially the same outcome, and that the stress that he endured would be the same before and after the Bill's enactment?

Andrew Dismore: My hon. Friend is right. If somebody is dead it is not possible to escape an investigation. I hope to say more about that later.

Robert Flello: If my hearing serves me well, my hon. Friend referred to a mugger. The offence would not be caught under the Bill, because the offence took place outside a building, not within it.

Andrew Dismore: Absolutely.
	Another case was that of Mr. Tony Evans, who in June 1993 shot an intruder. Presumably that was inside a building. He used a small-bore shotgun. He was not prosecuted because it was considered that he had exercised reasonable force.
	There was the case of Mr. Williamson, in August—

Sadiq Khan: Before my hon. Friend leaves the case of Tony Evans, may I refer him to what Mr. Evans said? He accepted that the police could not condone what he had done. He said:
	"They had to act. It could lead to a vicious circle if everyone starts arming themselves to shoot at burglars. The burglars may start arming themselves and then the police and before we know it we may be living in a gun society."
	Does my hon. Friend agree with those comments?

Andrew Dismore: My hon. Friend is correct. Mr. Evans says it all. We heard earlier the hon. Member for Newark quoting a burglar supporting the Bill. He had been shot in the buttocks. Mr. Evans, the victim of the attack, was saying that the existing law is correct and that police behaviour was correct in investigating him. He was not even prosecuted, because it was felt that he had responded with reasonable force.

Chris Bryant: Is not one of the sadnesses of the procedure that we have had to go through the fact that some Conservative Members have sought to suggest that we should try to restrict any investigation, prosecution or procedures towards prosecution in nearly every case? Sir Nicholas Lyell, the then Attorney-General, told the House following the Tony Evans case that any shooting incident must be carefully investigated. Surely that is the truth.

Andrew Dismore: My hon. Friend is absolutely right. Sir Nicholas was a Conservative Member.
	The next case is that of a Mr. Williamson. In August 1994, he disturbed a burglar and stabbed him in the neck with a kitchen knife. He was not prosecuted because it was considered that that was reasonable force.
	Then there is the case of Mr. Lyon, who was cleared of attempted murder and wounding after firing his shotgun at a man he thought was about to burgle his allotment shed. He was convicted of a lesser charge of unlawful wounding, but the Bill would have given him no help because he was not defending a building within the Theft Act definition. Even under the Bill, that would still be considered grossly disproportionate force bearing in mind the action that he took in the situation that he faced, a context similar to that in the Tony Martin case.
	John Pritchett was cleared of wounding two burglars who had broken into his wine store after he opened fire on them with a 12-bore shotgun. He shot them, but it was reasonable force.
	In November 1995, Mr. Richards shot at a thief who was fleeing into trees with the intention of scaring him off. He was cleared under the existing law of reasonable force but I suspect that the Bill would not help him because the incident did not occur in a building and he was not acting in self-defence or to protect property but to scare people off.
	In January 1996, David Kent was cleared after shooting a suspected burglar in the neck. Mr. Kent told the court that he feared for his life when he fired his shotgun after the assailant lunged at him. He was cleared under the reasonable force law. I will not go into the facts of the Tony Martin case because they have been explained in great detail today, but the hon. Members for Newark and for Vale of York and every Conservative Member have said that even under the Bill Tony Martin would have been dealt with, so they cannot pray that case in aid.
	Kenneth Hall shot a thief who was stealing from his car. He was acquitted in 1996. That was reasonable force, but, more importantly, it was not in a building and would therefore not have been covered by the Bill.
	In March 1998, Ted Newbery shot and injured an intruder through the door of his allotment shed. He was acquitted under reasonable force and would not have gained any protection from the Bill because it was not a building.

Sadiq Khan: My hon. Friend has reeled off a series of cases in which a jury has concluded that a defendant was not guilty. Given that juries are selected from a pool of ordinary citizens, does he agree that most householders, like juries, have common sense and know what is reasonable?

Andrew Dismore: My hon. Friend is right in saying that juries have a lot of common sense, but many of the cases that I am describing never even got that far. They had to be investigated by the police, but the individuals concerned were either not charged or, if they were, had their cases dropped. Most cases did not go to a jury.
	In the case of Mr. Davenport, two masked men with a hammer went to his home at midnight to attack him. He said that he was frightened for his life and stabbed and killed one of them. He was acquitted by a jury under reasonable force, but I think that the prosecution was properly brought in the circumstances of the case.
	In October 2002, Mr. Barry-Lee Hastings killed a burglar. The burglar was stabbed 12 times in the back and Mr. Hastings was convicted of manslaughter. On the face of it, he was not acting in self-defence and what he did would probably be considered grossly disproportionate, so he would have had no help from the Bill.
	In June 2003, Mr. O'Connor, an elderly blind man, stabbed and killed an intruder breaking into his home. He was not charged, under reasonable force.

Jim Dowd: My hon. Friend says that the Bill would not apply, but new subsection (1A) uses the words
	"Where a person uses force in the prevention of crime".
	Could it not be held that someone who shot dead a habitual burglar was preventing future crime?

Andrew Dismore: That is not the issue. The problem is that these people were not in buildings, and if they were not in a building they could not have relied on this defence. My hon. Friend makes an important point, but I think that prevention of crime here refers to crime in the immediate circumstances rather than to a burglar committing a crime next week or next month.
	Mr. Faulkner, another example from 2004, was a 73-year-old farmer who shot a burglar after he had been broken into three times. The judge said that he could not be criticised for the way in which he defended his property. He was not prosecuted because he had the reasonable force defence. Mr. Cook, in a case from August 2003, used a hockey stick to beat up a group of late-night revellers who attacked his wife outside the family home. He was acquitted under the reasonable force rules, but because the incident did not take place in a building, he would not have been able to pray the Bill in aid in any case.
	There is also the case of Linda Walker in March 2005. This was the famous case of a special needs teacher who defended herself heroically. She fired an air pistol at a group of youths who were terrorising her, but she was imprisoned because, under the old rules, it was not considered to be self-defence. As it took place outside her property and not in a building, the Bill could not have helped her. That is one case that might be on the borderline between "disproportionate" and "grossly disproportionate", but because the event happened in a building, she would not have benefited from the Bill in any case.

Robert Flello: As my hon. Friend says, in that case, it is possible that the "grossly disproportionate" rules might apply, but how do we know? The thinking behind "grossly disproportionate" is so woolly that we have no idea of knowing whether it would work or not.

Andrew Dismore: My hon. Friend is right, but I am just trying to do the best I can by applying a little common sense to the definitions.
	The promoters have constructed a whole superstructure to suggest that a change in the law is necessary to protect people in certain circumstances, but the examples that I have cited prove that their case is fallacious. In all those cases, people were either not charged or acquitted under existing law. In some cases, the new defence provided by the Bill would not apply because the events happened outside a building. In other cases, they would have fallen foul of the new law because the force used was excessive. I do not understand what the hon. Member for Vale of York would gain, should the House see fit to give her Bill a Second Reading today.
	On 13 January 2005, the Crown Prosecution Service issued a press release, listing other examples of cases where people were not prosecuted. There was a robbery at a newsagent in Greater Manchester where one of two robbers died after being stabbed by the newsagent, but the CPS did not prosecute. A householder, who returned home to find a burglar there struggled against him and hit him on the head. The burglar later died, but no prosecution resulted from that case in Derbyshire. Armed robbers threatened a pub landlord and barmaid. The barmaid escaped, fetched her employer's shotgun and shot one of the intruders. She was not prosecuted in that case from Hertfordshire.
	Two burglars entered a household with a knife and threatened a woman. Her husband overcame one of the burglars and stabbed him. The burglar died, but there was no prosecution in that case from Lincolnshire. A middle-aged female took a baseball bat off a burglar and hit him over the head with it, fracturing his skull. The burglar actually made a complaint, but the CPS refused to prosecute in that case from Lancashire. All those cases—the sort of cases for which the Bill provides protection—were perfectly adequately dealt with under the existing law of defence of reasonable force.

Sadiq Khan: My hon. Friend has provided five further examples of where the decision was taken not to prosecute. Some Opposition Members have argued that using the Attorney-General as a safeguard for prosecutions would provide greater certainty, but is it not the case that clarity in the law is what people need? Is it not more important than having a Law Officer take a decision on a prosecution?

Andrew Dismore: My hon. Friend makes two interesting points. First, he stresses the need for clarity in the law, which we have debated extensively today. However, the matter of whether the prosecution should be cleared by the Attorney-General is one aspect of the Bill for which I have some sympathy. In fact, there are very few cases under existing law where the Attorney-General's intervention would arise, but it could be a useful safeguard if a prosecution follows. I hope to return to that issue later in my remarks.

Chris Bryant: I wonder whether that is right. Is it right to put very high-profile cases, covered by the national media, on a politician's desk for a decision on whether a prosecution should proceed? Is that really what we want?

Andrew Dismore: I see the force of my hon. Friend's argument, but in such circumstances the Attorney-General would be acting as a Law Officer, not as a politician. Perhaps a better way forward is to suggest that the decision be taken by the Director of Public Prosecutions personally—an alternative that would probably achieve the same objective.
	For completeness, the CPS gave a number of examples of people actually being prosecuted. In one case, a man laid in wait on commercial premises for a burglar, caught him, tied him up, beat him up, threw him into a pit and set fire to him. That is probably grossly disproportionate, and the individual concerned would not, I suspect, find a defence under the Bill.

Robert Flello: But would that be grossly disproportionate under the Bill; where does it state that?

Andrew Dismore: The Bill does not state that, but common sense tells us that such an action would be regarded as grossly disproportionate.
	In the second case cited by the CPS, several people trespassed on to private land to go night-fishing. They were approached by a man with a shotgun who threatened to shoot them. They ran away, but one was shot in the back with 40 shotgun pellets. Again, that was probably grossly disproportionate; moreover, the Bill would have offered no protection in such an incident because it took place outside. In a third case, a householder laid in wait for a burglar who tried to burgle his shed, and shot him in the back. That is the "Tony Martin circumstance", which, as we know, given the concessions already made by Opposition Members, would amount to grossly disproportionate force.
	The question then arises of why we need to change the law of self-defence in the first place. I suggest that we do not. The law is clear and we have to have consistency in the law; having different tests for different circumstances is fraught with danger. We have already discussed what would happen when such incidents occur in, and outside, buildings; and, for example, whether a dormobile constitutes a building. I mentioned earlier the example of a security guard taking such action on a building site. As it stands it would constitute reasonable force, but if he is in the construction hut, the question arises as to whether the hut constitutes a building—a marginal point. If it is on completed premises, it probably constitutes a building. Would he have the nous to work out when he can and cannot use the defence provided in this Bill? What about allotments and garden sheds? Clearly, the allotment itself is not a building; the garden shed may or may not be, depending on the size of the structure.
	What about people who are attacked who are not in any form of building? The victim of a street mugging could use only reasonable force. We know that a phone box is not a building, because there is case law to that effect. The victim of a phone box mugging could defend himself with nothing other than reasonable force. Such an incident could easily happen, because as we know, a lot of drug deals are done in phone boxes.

Nick Palmer: I realise that my hon. Friend is in danger of running low on time, but I want to mention one issue that has yet to be stressed. The general public take separate views on the danger of excessive injury to a criminal, and on the danger of any injury to an innocent party or to someone who has committed a very minor act of trespass. Does my hon. Friend not think it important to stress that the Bill as drafted poses a risk of excessive over-reaction to someone who commits an actual offence, and of grievous harm to someone who has done no real harm?

Andrew Dismore: My hon. Friend makes a very interesting point. My main concern is that, one way or the other, the Bill would lead to an inevitable escalation of violence, rather than a diminution, as its proponents would have us believe.

Sadiq Khan: My hon. Friend has explained the Bill's inconsistency in respect of the approaches taken by victims of crimes against property, and by those who have been mugged in the street. However, is there not a more fundamentally offensive aspect of the Bill? Victims of crimes against their person—those who are raped in a park or assaulted in a public place, for example—would have fewer rights and less protection under the Bill than the victims of crimes against property in the household.

Andrew Dismore: My hon. Friend is right. Indeed, that was to have been my next point. How can we distinguish between the victim of a rape in a park who is allowed to use only reasonable force against her assailant and the victims of rape in other circumstances, inside a building that could be a public place, such as a tube station or a shopping centre—attacks have occurred in both—or the victim's own home? In one case the victim would be allowed to use disproportionate force to defend herself, whereas if she was raped in a park, in an open space, she could not. That cannot be right. How can we explain to women what they can or cannot do to defend themselves if we have to say that it depends on where they are attacked? That is ludicrous.

Chris Bryant: I wholeheartedly agree with my hon. Friend. I urge him to agree yet again with Melanie Phillips, who wrote in the Daily Mail:
	"After all, 'grossly disproportionate' tells householders that they can use 'disproportionate' force with impunity"
	Is not that the fundamental problem? Changing the law as the Bill proposes would ratchet up violence by both burglars and their victims.

Andrew Dismore: Exactly. It is interesting that one can agree with that eminent journalist twice in an afternoon.

Sadiq Khan: Does my hon. Friend agree that we must ensure that our hon. Friend the Member for Rhondda (Chris Bryant) has better reading matter for his spare time?

Andrew Dismore: One always has to look at the views of the opposition in newspapers such as the Daily Mail and The Mail on Sunday. On this occasion, my hon. Friend the Member for Rhondda is to be congratulated on his reading material.

Sadiq Khan: For research purposes.

Andrew Dismore: Indeed.
	The problems posed by the Bill go beyond the position of the victim. What about the good Samaritan rescuer? In trying to prevent a crime, the rescuer could find themselves in an extremely difficult position. The circumstances would be different depending on whether they were inside or outside a building and whether force was disproportionate. The measure would create significant difficulties.
	After going through all that material, my view is that we would do better to leave well alone, while making sure that people are aware of their rights under existing law.

Jim Dowd: In summary, this is the worst type of legislative change. As my hon. Friend has demonstrated, not only would it be largely ineffective, but where it was effective it would be counterproductive, so the Bill does not have much merit.

Andrew Dismore: I have to agree with my hon. Friend.

Sadiq Khan: I am troubled by the fact that my hon. Friend may not have time to deal with the European convention on human rights. Given the other hat he wears, I should be interested to hear his views on the compatibility of article 2, the right to life, article 3, the right not to suffer inhumane and degrading treatment and article 8, the right to privacy and family. What are his views about the findings of the previous Joint Committee on Human Rights? Will he share his experience and expertise in those issues?

Andrew Dismore: I am grateful to my hon. Friend for that question. I promised him that I would cover those points, and although I really wanted to work through a lot more material relating to the Bill before I did so, I am inclined to indulge him. I do not know whether I have sufficient time in the seven minutes left for the debate to deal fully with and give full justification for the human rights arguments, but I will give it a go.

Chris Bryant: Important as those issues are, will my hon. Friend deal with one more point before he moves on to them? I think that he has said six times that people would have only the defence of reasonable force, which seems to suggest that such force would not be substantial. In fact, the Law Commission, referring to partial defences to murder, stated:
	"We acknowledge that such a person, though genuinely acting in fear, might not always act 'reasonably' so as to attract the full defence of self-defence."
	In other words, one can go quite a long way and it is important that we get that point across to the public.

Andrew Dismore: My hon. Friend is right. Some of the examples that were given earlier make that clear. Victims gave tough responses, even including the death of the assailant. In all the cases to which I referred the victim was either not prosecuted or was cleared.
	My hon. Friend the Member for Tooting has been waiting with bated breath for some time for my views on the Human Rights Act 1998. I will indulge him, although I had hoped to deal with the matter in a more structured way later in my speech. I speak in this context as the Chairman of the Joint Committee on Human Rights, although I was not the Chairman when the Committee produced its two reports on this subject.
	Our starting point when considering this serious matter must be part I of schedule 1 to the Human Rights Act. One of the rights and freedoms under the convention is article 2, which is titled "Right to life". There would be a possible cross-reference to article 8 and the UN convention on the rights of the child if the alleged criminal were a child. I will not go down the route of the UN convention because we have insufficient time, but that convention would cause the promoter of the Bill additional problems.
	If the Bill were a Government Bill, the Minister would have had to certify that it was human rights compliant. As it is a private Member's Bill, however, it does not have to go through that process. I would be surprised if the hon. Member for Vale of York had made any effort to check the position of the Bill under the legislation. If the Bill were found not to be compliant with the Human Rights Act or the European convention on human rights, our courts could certify that the Bill was incompatible. If that happened, we would simply end up back here having the debate all over again. We would turn the law back to where we started because that would be required of us under the 1998 Act.

Sadiq Khan: Bearing in mind what my hon. Friend says and the fact that the mischief that Opposition Members are trying to prevent is clarity, how would a court interpret a Bill that was incompatible with the Human Rights Act?

Andrew Dismore: A judge could merely issue a certificate of incompatibility. We would be back here straight away and we would have to debate a new Bill to put the law back to where we started. However, that gives rise to the question of whether the Bill would be incompatible, so perhaps I can address that matter now as we are running a little short of time.
	Article 2 says:
	"Everyone's right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law."
	It goes on to deal with defending people from unlawful violence.

Robert Flello: Does my hon. Friend agree that the reasonable force defence in existing law gives the victims of crime the right to enjoy their property and live their lives without the need for this nonsense vigilante Bill?

Andrew Dismore: Absolutely. That is also protected by other parts of the convention and the Human Rights Act.
	The Joint Committee on Human Rights has examined the matter on two occasions, first in the context of the Criminal Justice (Justifiable Conduct) Bill, which the hon. Member for North Thanet introduced in 2004. The Committee reached the firm conclusion that the Bill would not be compliant with our obligations under human rights law.

Sadiq Khan: My hon. Friend might have read press reports about the wish of some members of Her Majesty's official Opposition to withdraw from the convention, which would obviously allow them to pass the Bill. Is he aware of the implications of withdrawal from the convention for the status of a member of the Council of Europe?

Andrew Dismore: Unless a specific derogation were allowed, we could not continue as a member of the Council of Europe if we were not signed up to the convention.

Sadiq Khan: Will my hon. Friend confirm my understanding of the convention, which is that countries cannot derogate from articles 2 and 3?

Andrew Dismore: My hon. Friend is absolutely right. As I was saying, unless there were a permitted derogation, a Government or country who wished to withdraw from those provisions would either have to leave the Council of Europe, or be thrown out of it.
	The Joint Committee on Human Rights scrutinised the Bill of the hon. Member for North Thanet in its 23rd report of Session 2003–04. It said:
	"This Bill would remove the deterrent effect of the criminal law in relation to murder, manslaughter and assault, amongst other offences . . . In removing the deterrent of the criminal law in this way, the Bill would in our view breach positive obligations to protect Convention rights to life and physical integrity. We consider that the Bill would be unlikely to be capable of interpretation"—
	It being half-past Two o'clock, the debate stood adjourned.
	Debate to be resumed on Friday 20 January.

Remaining Private Members' Bills
	 — 
	CRIME PREVENTION AND THE BUILT ENVIRONMENT BILL

Order for Second Reading read.

Hon. Members: Object.
	To be read a Second time on Friday 20 January.

REGULATION OF LASER EYE SURGERY BILL

Order for Second Reading read.

Hon. Members: Object.
	To be read a Second time on Friday 12 May.

LICENSING ACT 2003 (AMENDMENT) BILL

Order for Second Reading read.

Hon. Members: Object.
	To be read a Second time on Friday 20 January.

FAMILY LAW (PROPERTY AND MAINTENANCE) BILL

Order for Second Reading read.

Hon. Members: Object.
	To be read a Second time on Friday 17 March.

REGISTRATION SERVICE BILL

Order for Second Reading read.

Hon. Members: Object.
	To be read a Second time on Friday 20 January.

SECONDARY SCHOOLS (WELLINGBOROUGH)

Motion made, and Question proposed, That this House do now adjourn.—[Mr. Watson.]

Peter Bone: I would like to thank the Speaker for granting me the opportunity to hold a debate on an issue of immense importance to my constituency. I am also grateful to the Under-Secretary of State for Education and Skills, the hon. Member for Corby (Phil Hope), who will respond to the debate. I am pleased that half of the Members who represent Northamptonshire are in the Chamber, as well as my hon. Friend the Member for Shrewsbury and Atcham (Daniel Kawczynski), who is concerned about the issue.
	Secondary school provision in Wellingborough has been a huge concern for many years, as I will explain. I am grateful to all the teachers in my constituency, who do a tremendous job in circumstances that are not always ideal. I give them my praise and thanks for the superb job that they do. I should also like to place on the record my praise for the pupils and students who attend Wellingborough schools. They, too, face difficult conditions but, together with the help of their teachers, they work extremely hard to achieve their individual goals.
	The problem with secondary school provision in Wellingborough has been apparent for many years, ever since the closure and demolition of a local secondary school in 2001. The John Lea secondary school was closed in 1998 by the Labour-run county council, which thought that there were enough secondary school places in Wellingborough for local children. How wrong it was. John Lea secondary school was a modern school with good buildings and facilities. At the time, there was widespread fear that the closure of the school would leave the remaining schools in Wellingborough oversubscribed, and would leave some children without any education at all. Despite that fear, the school was demolished in 2001 to make way for new homes for new families. Those families, of course, had children who required secondary school education.
	Let us be honest: the closure and demolition of John Lea was meant to make money, yet that money has never gone back into secondary education in Wellingborough. I was not living in Wellingborough when John Lea was closed—I moved there shortly afterwards. However, I was living there when the decision was made to demolish the school. Along with many others, I fought to save the school with my "Listening to Wellingborough" campaign. I founded that campaign because I felt that too many politicians of all parties had become arrogant and out of touch. They were more than happy to preach to people, but were not prepared to listen. My "Listening to Wellingborough" campaign aims to seek the views of local people, groups and organisations and to campaign on their behalf for change.

Daniel Kawczynski: Will my hon. Friend give way?

Peter Bone: I shall first make a little progress, if I may.
	I listen to local people at every opportunity through surveys, public meetings, visiting residents and people coming to me. They were crying out for someone to listen to their views and concerns, and then do something about them. I spoke to many worried parents who were very concerned about the effects of the closure of John Lea school. As part of my listening campaign, I started SOS—"Save Our Secondary Schools." I could see, like many others, that the closure and demolition of a local secondary school would have a hugely detrimental effect on secondary education in Wellingborough.
	We campaigned against the demolition of the school. We went door to door seeking the views of local people, and we distributed numerous leaflets informing local residents of the proposals. The then leader of the Conservative party, my right hon. Friend the Member for Chingford and Woodford Green (Mr. Duncan Smith), and the shadow Secretary of State for Education at the time, my right hon. Friend the Member for Maidenhead (Mrs. May), both came to Wellingborough to give their support to the SOS campaign. Chris Heaton-Harris MEP petitioned the European Parliament on behalf of parents from Earls Barton, a community in Wellingborough, whose children were being denied a secondary school place. Yet despite all our efforts, the decision was made by the Labour-run county council to demolish John Lea school, and in 2001 the school was no more.
	One of the biggest oversights that was made in this case was that no one took into consideration just how much Wellingborough was due to grow in the coming years. The oversight has had a devastating effect on school provision and school choice, and the effects are still being felt.

Daniel Kawczynski: My hon. Friend describes the problem in Wellingborough as acute, and I am grateful that he has brought it to the attention of the House. The problem is also significant in rural areas, particularly in some of the villages near Shrewsbury. One such case is Grafton school—

Mr. Deputy Speaker: Order. The debate is specifically about Wellingborough.

Peter Bone: I thank my hon. Friend for his intervention, and I accept his general point about the provision for rural areas. Many people think of Wellingborough as an urban area, but Earls Barton, for example, is a rural village from which children have to travel miles to get to a school.
	When John Lea was closed, it was noted by the local authority that although there would be enough secondary school places for pupils transferring from primary schools, there could be further difficulties ahead if extra children were to move into the area. In fact, after the closure of John Lea school, all the remaining secondary schools in Wellingborough were oversubscribed and crowded.
	Some children had to be bussed outside the county to go to school. Some parents paid for their children to go to a private school. Some parents started to educate their children at home. Some families even moved away from the area to get their children into a school. Most worryingly of all, some children were left at home without any education at all. In April 2001, there were 21 pupils who were forced to stay at home because of a lack of school places. Some of those children had been without any education for up to six months. In short, although many children were not getting the education that they deserved, a worrying number were not getting any education at all.
	Some of the children denied a school place were at a critical stage before their GCSE examinations. How could an education authority and a Government leave children at home with no education at all? Had it been the other way round, and had parents been deliberately not sending their children to school, the LEA would have come down on them like a tonne of bricks. Sarah Robertson, who was 15 at the time, was at a critical stage in her education, with exams imminent, yet she had been without a school place for almost six months. I met many worried parents who did not know which way to turn because of the failure of the Labour-controlled local authority, and I met pupils who were bored and frustrated by being stuck at home. If that had been a one-off incident, it would have been bad enough, but it has happened time and again because of the closure of the school. In a subsequent year, another large group of children were left at home for weeks on end without any education at all.

Philip Hollobone: I congratulate my hon. Friend on securing this afternoon's debate. As the Member of Parliament for the neighbouring constituency of Kettering, may I say that I share his concerns? I put it to him that one of the major themes in our combined local area is that we face the prospect of 52,000 new houses being built in north Northamptonshire by 2021, while existing educational provision is not sufficient for the current population.

Peter Bone: I know how hard my hon. Friend works on behalf of his constituents. I feel a little guilty that secondary school children from Wellingborough are being bussed into Kettering because provision in Wellingborough is insufficient. I shall address his second point later in my speech.
	What was the solution proposed by the local authority and the Government? They decided to force already overcrowded schools to take even more pupils, which damaged the education not only of the pupils forced into those schools, but of all those already there. That should not have been allowed to happen, but unfortunately some children still do not have a school place. Since 2001, there has been a huge amount of growth in my constituency with many, many new families, whose children require secondary school places, moving into the area.
	Over the past four years, there has been an explosion of new development in my constituency, to which my hon. Friend the Member for Kettering (Mr. Hollobone) has referred, and it is set to get much, much worse, with thousands of new homes being built on the order of the Office of the Deputy Prime Minister. The Milton Keynes south midlands sub-regional strategy will see 13,000 new homes being built in Wellingborough by 2021, with another 10,000 homes planned for east Northamptonshire, large parts of which are in my constituency. Yet despite the knowledge that those new homes will be built, the Government have not indicated whether the infrastructure will be in place to support new and existing Wellingborough residents and their children.
	Turning to the problems that we face at the moment, there are currently four secondary schools in Wellingborough—three are foundation schools and one is a community school. I have been told that in Wellingborough between nine and 10 children a month find themselves without a secondary school place and must go through a lengthy process in order to get into a school. For example, a parent came to see me at my surgery last Friday. Mr. Hussein moved back into Wellingborough after being away for two years. He has two children, one of 17 and one of 12. The 17-year-old had previously been educated at a secondary school in Wellingborough, but that school could not re-admit her because it is now over-subscribed. The other child could not get into a secondary school near where they live, and both children were told that they had to go on a waiting list, so they are currently at home with no education at all.
	I have spoken to the local education authority, which will do its best to get those children into a school. However, the process that it uses to place nine or 10 children a month involves a meeting which occurs only once a month and which can only occur after the LEA has been made aware of the situation. It is quite possible that such children will be without any education for three months. Do the Government think that that would be the case if one of Wellingborough's secondary schools had not been knocked down?
	The LEA claims that some secondary school places are available in Wellingborough, but those places are all at the only school in Wellingborough that is in special measures. For many families moving into Wellingborough, there is no choice whatever—no matter where they live and no matter how far away they are from the school, they must go to the school that is in special measures. That situation is unacceptable, because there must be choice—parents should have some choice in what school their children go to. I note with interest that the Government's education White Paper advocates parental choice, which is welcome, but unfortunately it is just not happening in my constituency.
	Even those pupils coming from primary schools in Wellingborough are limited for choice. At the Wrenn school last year, there were 280 applicants for 250 year 7 places. Twenty-six people appealed, but only three of those appellants were able to get a place at the school. That means that the school is already, in year 7, three pupils over the number that it considers to be its maximum admission level. The admissions system allows parents to put down a first, second and third choice of schools in Wellingborough, but if their children do not get their first-choice place, they are extremely unlikely to get their second choice, because those will already have been filled.
	It is natural that every parent wants their child to go to the best possible school, and inevitable that some schools are better than others, but the most popular schools in my constituency are constantly oversubscribed and struggle with the limited capacity of their school buildings. Let me take one as an example. It is extremely popular and high-achieving. Only 208 places in each year group are available because of the restrictions of building capacity. In fact, the school now has to operate a one-way system on the stairs because the corridors are so full. It is having to use up its reserves to pay for essential maintenance. There is damp on the walls in some of the classrooms and condensation on the windows. This popular and high-achieving school needs Government funding to allow it to remain so. It is simply not big enough, and parts of it are literally falling down.
	When I asked the Minister whether provision was being made to build a new secondary school in Wellingborough, I received a written answer stating that as part of the building schools for the future programme, Northamptonshire schools are due to be refurbished or rebuilt over the next six to 14 years. Six to fourteen years? This work needs to be carried out now.
	In response to a second question that I asked about a new secondary school in Wellingborough, the Minister said that the Wellingborough area of Northamptonshire is prioritised towards the end of the building schools for the future programme. Apart from the obvious paradox that nothing is prioritised if it is at the end of a list, that means that, three times over, year 7 students could start secondary school and go through the whole of their secondary education before the existing Wellingborough schools are refurbished, yet those schools are in desperate need of repair now.
	There is currently no real choice for parents and children in Wellingborough. If children are not granted their first choice of school, they are rarely granted their second choice. The only pupils who seem to have a real choice of school are those with special educational needs. That is most welcome, but although it is important that statemented children should be able to go to the school that parents believe will cater best for the children's needs, it is equally important that the right funding and resources are put into these schools to help facilitate SEN pupils throughout their schooling. I do not believe that that is happening in Wellingborough.
	Schools in Wellingborough are oversubscribed and some have been forced to take on extra pupils over their maximum intakes. At Wollaston school, years 7 and 9 are over the 240 maximum. At the Wrenn school years 7, 8 and 10 have more pupils than the 250 maximum. Last year, Sir Christopher Hatton school was oversubscribed by more than 40 pupils who put it down as their first choice.
	It is clear from what I have said today that Wellingborough needs a new secondary school, and given the huge increase in development over the next 15 years, we need it now. I ask the Minister to be good enough to deal with the following points. First, what are the mechanisms necessary to get a new secondary school built? Secondly, when can we realistically expect a new secondary school in Wellingborough to be opened? Thirdly, in the intervening period, will he undertake to look at providing more funding so that existing schools can expand for the benefit of all the pupils in Wellingborough?
	I believe that the demolition of John Lea school may have been a genuine mistake, but it is essential that the Government, working with the local education authority, take urgent action to correct the situation.

Phil Hope: I congratulate the hon. Member for Wellingborough (Mr. Bone) on securing this debate. I am aware of his interest in this issue from the parliamentary questions that he has tabled in the past.
	Changes to school provision in an area are essentially a matter for local decision. The local authority has a statutory responsibility for planning sufficient school places and for proposing to close schools and to open new ones. These duties are further strengthened in the schools White Paper, which the hon. Gentleman mentioned, and I shall say more about that later if time allows.
	The hon. Gentleman asked about the relevant mechanisms, and I will start by talking about the present school organisation arrangements and why they came about. Before this Government took office in 1997, proposals for changes to schools often came to the Secretary of State for a decision. We considered that those matters were best decided locally, however, and a new system was put in place by the School Standards and Framework Act 1998.
	If a local authority decides that there is a need for a new school, it must first consult in the local area. Among those bodies that we advise should be consulted are any schools affected by the proposals, as well as parents and teachers in the area. I am pleased to say that the guidance was revised in September, when local Members of Parliament were added to the list, as were the local district and parish councils in the area in which the schools are situated. Local authorities are responsible for planning for school places in their area. They have a statutory duty to ensure that there are sufficient places and that high quality education is provided in a cost-effective way.
	I understand that Northamptonshire updated its school organisation plan in September this year. The new plan shows that the authority expects the number of secondary pupils in Wellingborough to increase gradually between now and 2008. However, there are at present 425 surplus places in the town. I shall come back to that point in more detail in a moment. In the longer term, a new secondary school might be required, and if Northamptonshire decides that such a school is needed to cater for a growth in the local population, the mechanism requires it to hold a competition in accordance with the provisions of the Education Act 2002. We have introduced competitions because we want to encourage a wide range of educational providers to come forward and promote schools that have a strong ethos. This is all part of our aim to drive up standards and to ensure that every child has the opportunity to go to a good school.
	As the hon. Gentleman has asked, I shall explain what would happen should Northamptonshire decide to hold a competition. First, the authority would publish a notice inviting interested parties to bring forward proposals for the new secondary school. The authority would then publish a summary of all the proposals received and any that it wished to make itself, as the local authority. Anyone would be able to pass comments on any of the proposals, be they objections or expressions of support. The authority would then submit all proposals and comments to the school organisation committee for consideration. The committee would pass the proposals, with its comments, to the Secretary of State for a decision.
	Of course, any promoter may publish proposals for a new foundation or voluntary school at any time, under the existing arrangements, to increase diversity. There does not need to be a general shortage of places. Such proposals are decided by the school organisation committee, or by the schools adjudicator if the committee cannot reach unanimous agreement. The committee may approve proposals only if it is satisfied that any capital necessary to implement the proposals has been secured. I hope that I have described the mechanism in a straightforward manner.
	Under the normal funding arrangements, the Department for Education and Skills is allocating Northamptonshire schools more than £78 million of capital over the next three years. We expect that money to be used for its priority needs, including the provision of statutory school places. It includes an element to cover pupil number increases. However, local authorities can also apply to the targeted capital fund—the TCF—every two years, if they have exceptional growth that they cannot fund from other sources.
	Northamptonshire has been allocated £12 million from the TCF for 2006–07 for a replacement school in another part of the county where it is prioritising need. Northamptonshire did not apply in the TCF round for 2007–08 funding. It will have a further opportunity in due course to apply for 2008–09 funding.
	On the revenue side, Northamptonshire has benefited from an increase in its total funding for education of £1,100 per pupil in real terms since 1997. We will announce in the near future the school funding settlement for 2006–07 and 2007–08, including each local authority's allocations of the new dedicated schools grant for each of those years.
	In the longer term, the building schools for the future programme—a massive investment in schooling—will support investment in all secondary schools in Northamptonshire, including new schools, where there is a need. Northamptonshire is expected to enter the building schools for the future programme in waves seven to nine—2011–14—with projects in Northampton and Corby. It has proposed five geographical groupings of schools for its building schools for the future investment. Wellingborough, as the hon. Gentleman rightly said, is prioritised in the final tranche of investment in waves 13 to 15, in 2017–18.
	I want to set out the detail of the local position that the hon. Gentleman described. I understand that since the closure of the John Lea school more than seven years ago in July 1998, Wellingborough has been served by three secondary schools. The John Lea school was closed because the number of pupils on the roll fell below 50, with more than 90 per cent. surplus places, and funding empty places, as we know, can represent a poor use of resources. The three remaining schools—Sir Christopher Hatton, the Weavers school and Wrenn school—now have 425 spare places between them.
	I am aware—and the hon. Gentleman mentioned—that the Weavers school has been in special measures since November 2004. In conjunction with Ofsted, the authority is addressing that. The new head teacher is helping the process and two additional school governors have been appointed to provide additional support. The local authority is also supporting the school, and there have been discussions with Department for Education and Skills advisers about how that can most effectively be done The Department has partnered Northamptonshire and Lincolnshire for the new relationship with schools. Each school will be allocated a school improvement partner, who are mostly experienced head teachers and senior managers in schools. They will provide high-quality support, challenge and monitoring. Given the hon. Gentleman's concern about the quality of education at that school and its current position, I advise him strongly to get active and join the school and local authority in finding ways in which the school can turn the situation around.
	On the question of growth, which has been raised by the hon. Gentleman and other hon. Members in the Chamber, the authority is confident that recent enlargements to its secondary schools will provide sufficient capacity to meet future demand for places in the medium term. In the longer term, Northamptonshire might decide that a new secondary school will be required to cater for growth in the local population, but that will be a decision for Northamptonshire at a local level. I understand that there are no current plans to open a further secondary school in Wellingborough, but the local authority will monitor that situation and the progress with growth projections, which he mentioned earlier.
	I have described the situation that pertains to date, so I shall briefly mention some of the changes that we propose in the White Paper, which might have some future relevance to the issues raised by the hon. Gentleman. Building on the progress that we have made since 1997, our aim is to transform our school system, so that every child receives an excellent education, whatever their background and wherever they live.
	The White Paper sets out our plans to improve radically the system by putting parents and the needs of their children at the heart of our school system. We will ensure that every school delivers an excellent education, that every child achieves to their potential and that the system as a whole is increasingly driven by parents and by choice.
	We are going to introduce tougher rules for failing schools. Schools in special measures will be more quickly turned around and where no progress is made after a year a competition for new providers will be held. Schools that receive a notice to improve from Ofsted will enter special measures within a year if progress is not made. Parents will be able to urge Ofsted action, or request new providers. Where there is strong demand or dissatisfaction with existing choices, local authorities will have to respond to their concerns.
	Time does not allow me to go into more detail unfortunately, but there is a new approach, in particular with the abolition of school organisation committees, which gives local authorities a key role in making decisions on the most appropriate schools for an area. The authority will be expected to assess proposals that it receives on their merits and approve the one that best meets the needs of the area. Under the new regime, it will be possible for a local authority's decision to be challenged, in which case the schools adjudicator will make a decision.
	I hope that I have described the mechanisms, outlined some of the factors that will affect a decision in terms of timing—
	The motion having been made after half-past Two o'clock, and the debate having continued for half an hour, Mr. Deputy Speaker adjourned the House without Question put, pursuant to the Standing Order.
	Adjourned at one minute past Three o'clock.